by Author Name Withheld 161

Created on: April 16, 2009

Many legal issues exist that can impact a company, especially a new entrepreneurial venture. One such legal issue pertains to the trademark and the less known trade dress. The power of the trademark is severely valuable to any business. The trademark is what establishes company identity and drives brand loyalty by consumers. The purpose of the trademark is to identify a product; and, certain regulations are in place in order to protect, not the product, but the words and symbols that identify the product. "Any word, symbol, slogan, logo, device, or product design that uniquely identifies a product can be a trademark," (1).

Trademark protection resides in the regulations of certain aspects of law. In common law, a court will use a precedent case to determine the validity of trademark usage. Federal law provides the necessary methods of obtaining trademarks and what should be done in the event of infringement. There are state laws that further implement and interpret the regulation of federal law. The global economy makes it difficult to retain trademark protection once borders are crossed. Many foreign treaties are in place in order to provide international trademark protection.

Acquiring trademark protection is not extremely difficult. For any individual or company wishing to obtain the rights associated with protection, a trademark must be in active use or in a status of intent. In order for active use to be considered, it must be commercial, meaning actual business transactions must transpire. In addition, the trademark must be physically associated with the product, namely, imprinting a label. Token use, a display of a trademark without commercial transaction, is not enough to invoke the protection of the trademark. If, however, the individual or company truly intends to use the trademark at a future date, a specific application can be filed. This provides a six month allowance to retain the mark; if needed, additional six month increments may be requested for a total of up to three years.

The other aspect of trademark use has to do with trade dress. "Trade dress is the overall appearance of a product a common type of trade dress is product configuration," (1). It has been established by the Supreme Court that the protection of trade dress resides in its nonfunctional, inherently distinctive nature. The noted case in recent American history, Two Pesos, Inc. v. Taco Cabana, Inc. 505 U.S. 763 (1992), set the precedent for the standards of trade dress protection.

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