Trademark Law

•    U.S. legal context for trademark law
The Commerce Clause of the Constitution provides for US trademark law statutes to be enacted by Congress, as was carried out through the 1946 Lanham Act. The language contained in this legislative package and specific to US trademark law can be further located from the source of Title 35 of the United States Code, U.S.C. The United States Patent and Trademark Office (USPTO) administers the American system of trademark law, as well as, as is implied by the title, for the additional functions related to patent registration.

•    Items covered under trademark law
Trademark law can be referred to, in the overall context of the U.S. legal system, as providing for the protection of a word, name, symbol, design, or any combination of the aforementioned items. Moreover, the primary function of any of these items as might be accepted for coverage under trademark law can be considered as comprising the identification of the source, creator or provider of a good or service. Most commonly, a word, logo, symbol or phrase will comprise the item registered under trademark law, while less commonly but still applicably, a color, sound, shape or fragrance can also be found acceptable.

•    Requirements for coverage under trademark law
US trademark law provides for 2 primary elements which must be present in an item, as could come in any of the aforementioned items, in order for it to be protected as a trademark. These requirements are administered by the USPTO as comprising:
o    Commercial usage:
This necessary context for a trademark proceeds from U.S. trademark law being based on the Constitutionally-assured Congressional power to regulate interstate commerce, as generally referred to as the Commerce Clause. Either the present or established future intention, on a good faith basis, usage of a trademark in a commercial context will thus be looked for by the United States Patent and Trademark Office towards providing patent protection.
o    Distinctiveness
The originality inherent in a trademark can be differentiated from that required for other items conferred intellectual property protection in that the specific purpose of a trademarked item is more specifically taken under account. The distinctiveness of a trademark can thus be identified in terms of how accurately it can identify a commercial good or service and the individual or group making it available. Types of distinctiveness considered under trademark law comprise:

-    Arbitrary/fanciful trademarks
-    Suggestive trademarks
-    Descriptive trademarks
-    Generic trademarks

•    Registration under trademark law
The United States Patent and Trademark office administers a process through which trademarks can be rejected and accordingly allow for reexamination to take place if the applicant applicably alters the trademark or more effectively mounts a defense for it. The registration process administered by the U.S. Patent and Trademark Office also allows for the possibility of opposition being mounted against a trademark being considered for registration. People opposing trademarks must establish both the demonstrable lack of legal validity in general and the particular possibility of ill-effects to be suffered by the complainant.