Jul 29, 2021Legal
What can't be trademarked?

Under US law, practically everything can be registered as a trademark, as the protection only applies in a particular context. The primary restriction is that the trademark cannot be functional; it cannot affect the performance of the goods or service it’s applied to. For example, it is possible to trademark eyeglass frames of a particular color, eyeglass lenses with a colored tint cannot be trademarked, as the tint directly affects the functionality of the eyeglasses.

However, there are limitations on what the federal government will uphold as a trademark and allow you to register it as one:
➡️ Generic trademarks – Generic words or phrases that are commonly used cannot be trademarked. Think of a footwear store; you cannot trademark the word “shoes.” What’s particularly interesting here is that if you run a fruit store, you wouldn’t be permitted to trademark the word “apple.” Meanwhile since that name has nothing to do with the tech industry, Apple can hold a trademark to sell phones and computers under that name.
➡️ Existing trademarks – This is the most obvious type of limitation. You cannot trademark a word or phrase that is already a registered trademark but only if you are operating in the same field of products or services. Two businesses selling cars can’t both hold the trademark with the name “Jaguar Car”, but the USPTO could allow you to use the word jaguar in another field of business, for example “Jaguar Shoes” as this is not likely to cause customer confusion.
➡️ Some unregistered trademarks – The federal government generally recognizes trademarks even if they have not been registered. Many businesses are satisfied with a registration in their state which gives them some local trademark law rights. If you happen to register with same name there will be a determination based on whether having two businesses with the same name will cause consumer confusion.

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