Can Your Brand’s Trademark Be Stolen?


Oct 04

A distinct trademark can take your brand places you never envisioned. Trademark law also makes it easier to protect a trademark which is more distinct than one which is more common. When a company starts out, it can be a good idea to seek out the availability of a trademark before actually using it. Knowing whether someone-somewhere else has an approved trademark that is the same as your idea, can be a good way to save your company money and unnecessary business troubles.

A trademark is a recognizable insignia, phrase or other symbol that denotes a specific product or service and legally differentiates it from all other products. It serves to exclusively identify a product or service with a specific company, and is recognition of that company’s ownership of the brand. Trademarked products are generally considered a form of property. Most countries have agencies through which businesses can have their products trademarked. A trademark can be a logo, like the Nike Swoosh, a slogan, or simply the name of a product. Some brands, like Kleenex, are so prominent that they have almost replaced the original word (tissue) in everyday language.

One of the main purposes of having a product trademarked is to protect the product from being used without permission of the source company. Most countries have patent laws which are designed to protect against copyright infringement. A trademark cannot be descriptive and shouldn’t be generic either.

For example, recently the word ‘google’ came up under discussion in a court case where the argument was whether the trademarked word could be used by other websites to mean the word ‘searching online’. While the word ‘googling’ is now often used instead of ‘online search’ the court ruled in Google’s favor and said the trademark was still capable of being protection from unauthorized use.

The financial post recently had an article by franchise lawyer and registered trademark agent Chad Finkelstein, who said that the principal element of trademark law is that a mark cannot describe the nature of the goods or services associated with it.  For example, you can’t own the trademark “Gas Station” if you operate a gas station.  The idea being that nobody should own the exclusive rights to the words that describe the actual thing you are selling.

He also used examples such as Thermos, Q-Tip, Aspirin, cellophane, escalator, Kleenex, Polaroid, Band-Aid to show that trademarks have a strong tendency to fall victim to genericide. Under U.S. law, genericide is a form of abandonment. A mark will be deemed to be “abandoned” if its use has been discontinued for three years with intent not to resume such use or when the mark becomes the generic name for the goods or services on or in connection with which it is used.