Other Facts about Trademarks

  1. In addition to words, phrases, images, or combinations of the three, other types of trademarks can cover colors, smells, and sounds. Even “Trade Dress” can be trademarked. Trade Dress is packaging of a product that makes it distinctive. An example could be the shape of the classic, glass Coca Cola bottles. However, Trade Dress cannot be trademarked if such packaging gives a strategic (non-marketing) advantage to the product. Trade dress with a strategic advantage would likely fall under patent law, obviously a very different type of intellectual property law.
  2. Variations of a trademark are also protected. As an example, you’d probably lose a lawsuit if you started the Shall gas station or a chain of stores called Wal-Mort! And cyber squatting, such as buying misspelled domain names of trademarked words, would similarly constitute trademark infringement. And this is also something Web Defense Systems can monitor for your company.
  3. Similar to copyright law, there is a potential defense for trademark infringement, Fair Use. For a much more detailed explanation of Fair Use, click here. In short, Fair Use makes legal an otherwise infringement if the use is educational, informative, simply noting a fact, if the use is limited, etc. So as an example, this document uses the trademarked names of Home Depot, Apple, Google, Chevron, Coca-Cola, Shell, Wal-Mart, and others. But the use of these trademarked names was not to create confusion in the marketplace, take advantage of their marks, or dilute the impact of their trademarks. Rather, these uses were all legal because they were for purposes of simply identifying the company and educating our readers about trademark law. Again, Fair Use is quite complicated, but an important legal concept to keep in mind.

Disclaimer: The purpose of our “Knowledge Base” documents is to explain the basics of the subject matter in question and to provide some rationale behind the actions that Web Defense Systems might take on behalf of our clients. We are not lawyers, and the preceding information should not be used in lieu of legal advice.