Much like Letterman used to ask, “Is this anything?“, clients often ask “Is this a trademark?” The answer to that depends on the answers to the following questions:
- Is whatever it is connected to the good or service being sold? Will the customer see your product and the proposed mark together at the time they are buying the product? If they can’t connect the two together, then no, it isn’t a trademark.
- Will the customer see the proposed trademark on the product at a later date and think, “Oh, the same people who made that last time must make this, too!” For example, they see your thing in Walgreens in Platteville then see it at Target in Green Bay, they will think “Yeah, I like that stuff from last time I had it. I’ll buy it again” and have confidence it came from the same source. If instead, they think “Hmm, peanut butter. This jar says its creamy, and that’s what I like. Chunky is the worst. Guess I’ll go with this one” and you thought “Creamy” was your mark, then no, it isn’t a trademark. It is a description of your product.
- Can people use the proposed mark to distinguish you among the sea of competitors? Again, your customer is cruising the aisles looking for soap this time. If all of the boxes of soap look the same, are they going to pick out yours? Or what if yours and someone else’s look awfully similar, are you sure they are putting yours in their cart instead of your competitor? If you can’t help them distinguish (Go for the green box. Or the bottle has a giant D on it.), how do expect them to pick you? If they can’t use it to Pick Me! Pick Me!, then no, it isn’t a trademark.
The fun part is that almost anything allowing those three things to occur can be a trademark. It can be a color – when you see pink insulation, you think Owens Corning. It can be a smell – a chocolate scent at a jewelry store selling Le Vian diamonds. Don’t forget the iconic shape of Coca-Cola bottle. Of course, logos, slogans and brand names work, too.
Whatever it is, it is what helps your customers call to their spouse while the spouse is at the store, tell them to pick up an item, and the spouse successfully accomplishes the task. If that can happen, yeah, that’s something.