A Guide to Trademark Selection Clearance and Use Legal and Business Considerations in Selecting a Trademark

摘要

Prior to examining the selection of a brand, it is essential to clarify that there is a difference between a "brand" and a "trademark." It is correct to say that "a trademark is always a brand, but a brand is not always a trademark," but that is an oversimplification. The distinction between "brand" and "trademark" is a legal one. The "brand" is the name, symbol, phrase or combination of them that the merchant uses to identify its product or service. The "trademark" is the legally recognized and protected aspect of the brand. Sometimes we substitute the term "service mark" for "trademark" when the mark is used in connection with services rather than goods. Legally, trademarks and service marks are treated the same. An example should help clarify the distinction. Suppose you purchased the domain name "chemicals.com" and used it in connection with a site that sold and/or provided information regarding industrial chemicals. Your use of the name "chemicals.com" would almost certainly be considered merely descriptive or generic, would not be recognized as a legally protected trademark and could not be enforced under the trademark laws against another party using the same or a similar term. But that is not to say that the brand is without value. The exclusivity ensured by the current domain name system could render "chemicals.com" an extremely valuable "brand."