I like trademark law because it often just makes sense. For example, let’s talk about the requirement that a mark must be in use in order to obtain protection.
For a trademark to be registered in the United States, it has to actually be used in a way that a customer sees the mark when they are making a decision about purchasing something. To start, a trademark is meant for marks used on goods. A service mark is attached to services. This distinction often doesn’t matter a whole lot (until it does). Whether a trademark or a service mark, the customer sees something that makes them think “Ooh! I know that product! I like them and want to buy the thing!” Or perhaps the opposite, “Ugh, that did not work out the last time, and I am going to avoid them like the plague.” In either case, the mark is connected to the thing the customer is buying. That only happens if the thing is actually for sale with the mark attached to it.
If I have an idea and a name, but that’s it – a customer can’t make the above connection. They can’t repeat buy; they can’t recommend it to others, and they can’t put it on a wish list for others to purchase it for them as a gift. The mark isn’t in use, and so I am not generating goodwill (or bad will) in my mark. That means it can’t be registered. Makes sense, right? If I’m not using it, my customers don’t know about it. They can’t have opinions, and I can’t have sales. And if that’s true, then I don’t have a trademark. I have an idea for one.
The connection between marks and the stuff that is being sold is pretty direct. If I’m using DELTA on noodles, people probably aren’t thinking my carb-loading strings of gluten are from the airline people, the faucet people, or the dental insurance people. If I’m using DELTA on bathroom tile, however, people may think the faucet people are involved. If a customer thinks the two are connected, what they think about the faucets will spill over to what they are ready to believe about the tile. If they don’t think the two are connected, then it’s just another DELTA to remember. My noodles will stick to the reputational wall on their own.
Thanks for reading! Erin