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Trademark Terms

Glossaries |
Trademark Terms

The following abbreviated trademark-related definitions are approximations only, and as the law changes, the definitions of these terms may change. For more current, accurate, and complete definitions, consult updated trademark treatises such as McCarthy on Trademarks and Gilson on Trademarks as well as Title 15, United States Code and the USPTO website at www.uspto.gov.

Arbitrary Mark: A mark comprised of existing word(s) having no ordinary relationship to the products offered with the mark, e.g., KIWI for shoe polish, APPLE for computers, and PENGUIN for books.

Brand: The expectations, perceptions, and memories about product(s) evocable by a trademark and its associated identifying devices, so that "branding" is the creation of expectations, perceptions, and memories about product(s) evocable by a trademark and its associated identifying devices.

Capricious Mark: See "Fanciful Mark" below.

Certification Mark: A mark used by a person or entity other than its owner to certify (1) regional or other origin, material, mode of manufacture, quality, accuracy, or other characteristics of such person's or entity's products, or (2) that the work or labor on the products was performed by members of a union or other organization. Examples of well known certification marks are UL (Underwriter's Laboratory) and the GOOD HOUSEKEEPING SEAL OF APPROVAL.

Collective Mark: A mark used by members of a cooperative, association, or other collective group or organization to identify and distinguish their products, e.g., LURPAK used by the Mejeriforeningen Danish Dairy Board for butter and other spreadable dairy products from Danish producers (U.S. Reg. No. 2,638,403) and 3HO used by yoga instructors for yoga education services (U.S. Reg. No. 3,194,370)

Collective Membership Mark: A mark indicating membership in an organized group, e.g., the letters "AAA" within an oval shape, indicating membership in the American Automobile Association (U.S. Reg. No. 645,541) and 1% FOR THE PLANET, indicating membership in an association of businesses donating proceeds to environmental organizations (U.S. Reg. No. 3,233,020).

Color Mark: A mark comprised of one or more colors, often confined to a specific design or shape, e.g., the pink color of Owens-Corning building insulation (U.S. Reg. No. 2,380,742) the brown color used by United Parcel Service (UPS) (U.S. Reg. No. 2,901,090).

Descriptive Mark: A mark which describes the products or their functions or characteristics, e.g., SUPER BLEND for multi-viscosity oils (though registered with secondary meaning, e.g., U.S. Reg. No. 1,230,773 (expired)) or SUDSY for ammonia.

Design Mark: A mark consisting of a picture, design, or symbol, like the Baron Rothschild sheep's head used for wine (U.S. Reg. No. 3,073,740), also including stylized designs for words such as the IBM design (U.S. Reg. No. 1,205,090).

Dilution: Impairment of a famous mark's strength caused by unauthorized use of an identical or similar mark, trade name or other device, generally for unrelated products. Dilution can occur by "blurring" or by "tarnishment." A mark is diluted by blurring when its distinctiveness is impaired because of use of the other identical or similar device. A mark is diluted by tarnishment when its reputation is impaired because of unsavory or unflattering use of the other identical or similar device. E.g., the owner of BUDWEISER for beer brought an anti-dillution action against BUTTWISER for T-shirts, an alleged blurring, and TOYS "R" US for children's toys encountered ADULTS "R" US for sexual devices, an alleged tarnishment.

Family of Marks: A group of marks, owned by one person or entity, which all have a common element. Typically the family of marks is applied to related products to indicate a single source for all the products. The "MC" device used in McDonalds Corporation trademarks creates a family of marks, e.g., MCDONALD'S, MCNUGGETS, and MCSNACK; so does "CITI," as in marks such as CITIPRIVILEGES, CITITREASURY, and CITIINSURANCE.

Fanciful Mark: A mark comprised of coined "word(s)" having no meaning in any language, e.g., KODAK for film, EXXON for petroleum products, and PROZAC for anti-depressant medications.

Federal Registration: A registration at the United States Patent and Trademark Office (USPTO) in Alexandria, Virginia, which enhances protection under Federal law. Foreign Registration: A registration in any jurisdiction outside the U.S.A.

Generic Designation: A designation which is a common descriptive name of the products being provided, such as TELEPHONE or ESCALATOR. An improperly used distinctive mark can become generic, and therefore no longer protectable, especially when used improperly as a noun, as with ASPIRIN or CELLOPHANE.

House Mark: A mark designed to identify an entire business which may offer multiple products. MICROSOFT is a house mark for Microsoft Corporation which offers numerous products under individual product marks such as WINDOWS, WORD, ENCARTA, and EXCEL. Similarly, HONDA is a house mark under which resides product marks like ACCORD, CIVIC, and ACURA.

Ingredient or Component Mark: A mark indicating the source or origin of an ingredient or component of the product but frequently not owned by the product's manufacturer or distributor. Examples are INTEL INSIDE, DOLBY, GORE-TEX, and NUTRASWEET.

International Registration. A registration at WIPO (World Intellectual Property Organization), headquartered in Geneva, Switzerland, procured through the Madrid Agreement or Madrid Protocol. At the time of first publishing this work, the USA was only a party to the Madrid Protocol.

"Look For" Advertising: Advertising that encourages the consumer to "look for" the color, seal, medallion, sticker or other device which the sponsor wants to establish as a protectable mark or trade dress. Examples are "Just look for the blue, white and red State of Maine trademark the next time you're shopping for potatoes" and the International Ladies' Garment Workers' Union song and slogan "Look for the union label."

Olfactory Mark: A mark consisting of a distinctive scent, often applied to goods or containers or displays for the goods. The first such mark registered at the USPTO was a floral fragrance applied to thread and yarn (U.S. Reg. No. 1,639,128). See also, e.g., U.S. Reg. No. 3,143,735 for a vanilla scent applied to office supplies.

Principal Register: The Register maintained by the USPTO listing marks which are or have become distinctive, i.e., capable of distinguishing the products of the owner from those of others. Marks registered on the Principal Register enjoy greater protection than those on the Supplemental Register. Excluded from this Register are non-distinctive subject matter such as descriptive designations, marks "primarily merely surnames," and certain misdescriptive marks.

Product Mark: A mark associated with a particular product, as distinguished from a house mark which relates to the entire business. Product marks include TERCEL, AVALON, COROLLA, and CAMRY, which reside under the TOYOTA house mark.

Secondary Meaning:
The additional significance that a word, slogan, design, or other device achieves as an indication of source or origin, in contrast to its primary significance as descriptive or other non-distinctive subject matter. Secondary meaning is attained when, after extensive use and advertising, the public perceives the otherwise non-distinctive device as an indication or source or origin. TASTY for foods was registered at the USPTO with secondary meaning (U.S. Reg. No. 2,092,872); so was DIGITAL for computer equipment (U.S. Reg. 2,353,022 (expired)). Secondary meaning is also referred to as "acquired distinctiveness."

Service Mark: A word, name, symbol, or device, or any combination thereof, used by a person or entity to identify and distinguish the services of one person or entity from the services of others and to indicate the source of the services, even if that source is unknown. Most insurance marks like GEICO and TRANSAMERICA are entirely or primarily service marks rather than trademarks since the owners are exclusively or primarily offering services rather than goods. For these purposes a "service" is a real activity performed to the order of, or for the benefit of, someone other than the trademark user, which activity must be qualitatively different from anything necessarily done in connection with the sale of the trademark user's goods or the performance of another service.

Slogan: A phrase or statement that helps promote interest in a company or its products, frequently descriptive or highly suggestive, directly touting a specific quality or benefit, often intended for short term use, and typically longer than a tagline. Examples are the British Airways slogan THE WORLD'S FAVOURITE AIRLINE and the New York Times slogan ALL THE NEWS THAT'S FIT TO PRINT.

Sound Mark: A mark comprised of a distinctive sound or of a combination or series of sounds, e.g., the NBC chimes (U.S. Reg. No. 916,522) or the Twentieth Century Fox musical phrase (U.S. Reg. No. 3,141,398).

State Registration: A registration at a State trademark registry in any of the 50 States in the U.S.A.

Suggestive Mark: A mark which intimates or suggests the goods or services, or their characteristics, without being descriptive, so that the underlying connection between the mark and the goods or services only appears upon reflection or upon exercise of the customer's knowledge or imagination, e.g., MOUSE SEED for rodent poison or SUNKIST for fruits.

Supplemental Register: The Register maintained by the USPTO which lists marks potentially capable of distinguishing the owner's products from those of others but not registerable on the Principal Register. E.g., descriptive or geographically descriptive marks as well as surnames are possibly registerable on the Supplemental Register. Supplemental Register registrations provide fewer benefits than those on the Principal Register.

Tagline: A very short phrase or other short combination of words that reflects the tone, essence or premise of a company or its products, frequently two to four words in length, arbitrary or remotely suggestive, metaphoric or imaginative, and designed for long term use. Examples are the NIKE tagline JUST DO IT and IMPOSSIBLE IS NOTHING associated with ADIDAS.

Trade Dress: The distinctive, non-functional appearance of a product, its packaging or presentation, arising from features such as size, shape, colors, arrangement, texture, and graphic design. The packaging for KODAK and FUJI film are trade dresses; so would be the decorations, interior arrangements, and color schemes of the TACO CABANA restaurants.

Trade Name: The name used by a person or entity to identify his/her/its business, as distinct from a trademark or service mark, e.g., Eastman Kodak Company as distinct from KODAK, Xerox, Inc. as distinct from XEROX, and Atlantic Richfield Company in contrast to ARCO.

Trademark: A word, name, symbol, or device, or any combination thereof, used by a person or entity to identify and distinguish his/her/its goods from those manufactured or sold by others and to indicate the source of the goods, even if the source is unknown.

Word Mark: A mark comprised of text, consisting of letters or other typographical elements, or both, e.g., MINOLTA, COBRA, 7-ELEVEN, W3C, BLACK & DECKER, VICTORIA'S SECRET, and M@DNOYZ.



 
 























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