Trademark
Definition
Any word, name, symbol, or design, or any combination thereof, used in commerce to identify and distinguish the goods of one manufacturer or seller from those of another and to indicate the source of the goods. See 15 U.S.C. § 1127.
See also service mark, collective mark, certification mark, trade name.
Overview
Trademarks are generally words, phrases, logos and symbols used by producers to identify their goods. However, shapes, sounds, fragrances and colors may also be registered as trademarks. See Qualitex v. Jacobsen Products Co., Inc., 514 U.S. 159 (1995). In recent years, trademark law has expanded to include trade dress and antidilution protection. Almost any word, name, symbol, or device capable of distinguishing the source of goods may be used as a trademark subject to few limitations. However, a mark's eligibility for trademark protection may be limited by application of the functionality doctrine, and a mark may be denied registration if it falls within any of the categories listed under 15 U.S.C. § 1052.
Use in Commerce and Distinctiveness
Two basic requirements must be met for a mark to be eligible for trademark protection: it must be in use in commerce and it must be distinctive.
The first requirement, that a mark be used in commerce, arises because trademark law is constitutionally grounded in the congressional power to regulate interstate commerce. See Commerce Clause. The Lanham Act defines a trademark as a mark used in commerce, or registered with a bona fide intent to use it in commerce. See 15 U.S.C. § 1127. If a mark is not in use in commerce at the time the application for registration is filed, registration may still be permitted if the applicant establishes, in writing, a good faith intent to use the mark in commerce at a future date. See 15 U.S.C. § 1051. Both at common law and under traditional Lanham Act registration procedures, exclusive rights to a trademark are awarded to the first to use it...