Trademarks have a unique position in design, they are created as and are often works of art but they serve a business purpose. While forming the basis for what we commonly call a brand, it is the commercial activity of the trademark owner that actually creates the commercial value of a trademark, becoming that thing we call a brand. As a legal matter, a trademark that is a logo is merely a work of "useful art" until it has a life in commerce; then it becomes a trademark. Trademarks tell consumers where goods or services originate, where they come from and what business is responsible for them. Good trademarks become symbolic of the companies and the goods or services they are associated with.

The ability to protect a trademark is directly related to its distinctiveness. Generic terms for goods, such as wine, bread, tissue, and other names for things cannot be a trademark, since they identify the good itself. Words or terms which describe a good; a feature or attribute of a good, or a use for the good are considered descriptive and cannot serve as a trademark. Generic and descriptive terms are considered to create excessive limitations to commerce, undermining the basic goals of trademark law; that it supports and promotes commercial activity.

Examples of Generic terms would be WINE for wine, or FOOD for groceries and foodstuffs. Trademarks that are suggestive, a gray zone where the trademark is not quite descriptive, are capable of being a trademark and can be registered. Examples of suggestive marks would be VERDANT for green-themed living advice or Trademarks that are not generic, descriptive or suggestive are deemed to be distinctive and can be registered. Good examples of distinctive trademarks are words, symbols, designs or terms, or any combination thereof, that have no meaning to the goods or services they are used with or a word or term that is "made up." Examples of made up terms that have become trademarks would be KODAK, EXXON or GOOGLE. Examples of trademarks that have no relation to the goods they are used with would be APPLE for computing devices or ANDROID for computer software.

A great set of tools for designers are the large number of databases that the U.S. Patent and Trademark Office makes available at no charge. Using the Basic Search option, one can search for a trademark or a trademark owner, among others. Another great search feature is the ability to search for designs. Here, a designer can search for a logo using the number codes that the USPTO assigns to elements and shapes that make up a logo. With a little patience and some exploration, a designer can find out whether her proposed trademark can be registered or the logo she is working on is truly unique. In my next post, I will discuss the trademark registration process and how to make it work for you.

All Trademarks shown are from the archives of the U.S. Trademark Office.