What is a Trademark?


Our tagline is If it’s remarkable—it’s trademarkable. But really, what can be protected as a trademark? Find out in this cartoon!





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TRANSCRIPT

NARRATOR: Paul runs a branding agency. He understands the value of trademarking names and logos, but is wondering if there are other things that can be protected as trademarks.

PAUL: We need to expand. We need to figure out a way to offer our customers something that we have not been offering. We are great at creating logos, but so are many of our competitors. We should be able to offer our clients something that nobody else does.

WOMAN 1: Yeah, can you imagine? How valuable is the shape of the Coca-Cola bottle?

WOMAN 2: Right, or its taste!

MAN: Or its color!

PAUL: I’m not sure if these can be trademarked. To be honest with you, I’m not even sure what can and what cannot be trademarked.

WOMAN 1: But we need to understand it first!

WOMAN 2: Of course!

MAN: Let’s call the Trademark Factory guy. He’s got his new book out, The Ultimate Insider’s Guide to Intellectual Property. He must be able to explain this to us!

PAUL: Good idea!

TRADEMARK FACTORY: Hello, Trademark Factory here!

PAUL: Hi there. I’ve got you on the speakerphone. We are a branding agency and would like to better understand what is trademarkable.

TRADEMARK FACTORY: Oh, it’s simple… If it’s remarkable…

PAUL, WOMAN 1, WOMAN 2, MAN together: It’s trademarkable!

PAUL: No, seriously?

TRADEMARK FACTORY: OK, let’s start with the definition. A trademark is a feature unrelated to the characteristics of your products or services which allows your business to help customers and consumers distinguish your products and services from the identical or similar products and services of everyone else.

PAUL and WOMAN 1 [pretending that they understood]: AAAAAAhhhhhh!

TRADEMARK FACTORY: Pretty much anything can act as a trademark. It can be invented words—for example, Xerox or iPad.

TRADEMARK FACTORY: It can be dictionary words—like Apple or Windows.

TRADEMARK FACTORY: It can be a slogan—like I’m Loving It.

TRADEMARK FACTORY: It can be a logo.

TRADEMARK FACTORY: It can be a character from a book or a cartoon.

TRADEMARK FACTORY: It can be the shape of a product (called “distinguishing guise” in Canada)—like the Coca-Cola bottle.

TRADEMARK FACTORY: It can be a color, such as the magenta color of T-Mobile or the red soles of Louboutin shoes.

TRADEMARK FACTORY: It can be a tune, such as the famous Nokia tune.

TRADEMARK FACTORY: It can also be just a sound or a noise. The first registered sound trademark in Canada was MGM’s roaring lion

TRADEMARK FACTORY: Indeed, every time you hear a roaring lion in the beginning of a movie, you don’t even have to look at the screen; you’ll know exactly who made it.

PAUL, WOMAN 1, WOMAN 2, MAN together: So pretty much anything can be a trademark?

TRADEMARK FACTORY: That’s what I said. As long as it functions as a trademark, it can be a trademark!

PAUL: What do you mean - “functions as a trademark”?

TRADEMARK FACTORY: The function of a trademark is to allow the end consumer to distinguish your products and services from the identical or similar products and services of your competitors. Here are a couple of examples.

TRADEMARK FACTORY: You go to a food court in a shopping mall and see several chains offering burgers, fries, and drinks. These burgers, fries and drinks look and taste virtually the same. What makes them different is the packaging, the big signs at the back, the uniforms, the bags, and the plastic cups—they are all there to help you choose the burgers, fries, and drinks offered by one company over the burgers, fries, and drinks offered by all the other companies. This is the proper function of a trademark.

MAN: Yeah, Big Macs are the best!

TRADEMARK FACTORY: But simply showing a photograph of a mouth watering burger to seduce people to choose a burger over a pizza or a salad is NOT a proper function of a trademark, because the photograph does nothing to distinguish this particular burger place from all other burger places. So there is nothing that functions as a trademark about it.

PAUL: I see!

TRADEMARK FACTORY: One more example is taxi operators. They all do essentially the same thing and often charge the same rates. Whatever sets you apart from your competitors who do the same thing can usually be your trademark.

WOMAN 1: So the triangular shapes of my favourite chocolates can be a trademark?

TRADEMARK FACTORY: Yes!

WOMAN 2: And the blue color used by Tiffany & Company can also be a trademark?

TRADEMARK FACTORY: Yes!

PAUL [humming Intel’s jingle]: So this can also be a trademark?

TRADEMARK FACTORY: Yes!

MAN: How about a pizza recipe?

TRADEMARK FACTORY: No, because the function of trademarks is to distinguish your products and services from identical or similar products and services of everyone else. Trademarks are not supposed to protect the substance or the functionality of your products and services, only the features that allow end consumers to tell your stuff from everybody else’s stuff!

MAN: Got it!

PAUL, WOMAN 1, WOMAN 2, MAN together: THANK YOU!

PAUL: Ok, boys and girls, we have work to do!


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Disclaimer: Please note that this cartoon is not and is not intended as legal advice. Your situation may be different from the facts assumed in this cartoon. Your watching this cartoon does not create a lawyer-client relationship between you and Trademark Factory International Inc., and you should not rely on this cartoon as the only source of information to make important decisions about your intellectual property.

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