Trademark selection – avoid functionality
Trademarks can offer a huge advantage over patents in that properly used trademarks do not expire, while all patents [and copyrights] do. Some people try to use this difference to their advantage and register trademarks that look like their products. If this is taken too far, it can backfire and lead to an invalid trademark.
If a product’s design is functional, that design cannot serve as a trademark. Trademark law, which seeks to promote competition by protecting a firm’s reputation, can not be used to inhibiting legitimate competition by allowing a producer to control a useful product feature with a trademark. That is the province of patent law.
Food for thought: if you are going to employ some sort of logo or design for your goods or services to serve as a mark that identifies your company as the source of those goods or services, make sure the logo or design does not look too much like the goods or services.
Even if the USPTO allows the logo or design to be registered, it might eventually be declared invalid in court. This could leave you scrambling to come up with a new trademark to use instead of the one that was declared invalid. Also, you might not be able to exclude others from using it to display their goods or services.
James Lindon, Ph.D. Patent Attorney
Lindon & Lindon, LLC
Patents, Trademarks, Copyrights, Pharmacy Law, Litigation
[this is not legal advice - provided for discussion only]
Intellectual Property for the Individual and Small Business: Identify, Protect, Enforce, Defend.
"Fools rush in where angels fear to tread."