What Is a Trademark?

A trademark is any word, name, symbol, or device, or any combination of them, used in commerce to identify and distinguish goods from those of others and to indicate their source (15 U.S.C. § 1127). Federal registration rests on current use in commerce or on a bona fide intent to use the mark (15 U.S.C. § 1051(a)-(b)). Registration brings nationwide constructive notice (15 U.S.C. § 1072) and a presumption of ownership and validity (15 U.S.C. §§ 1057(b), 1115(a)).

Rights in a mark also arise from use, not only from registration. A term that merely describes goods is protectable only if consumers have come to associate it with a single source (15 U.S.C. § 1052(e)-(f)).

Texas also registers marks. A person who uses a mark may apply to register it with the Texas secretary of state (Tex. Bus. & Com. Code § 16.052); a mark that distinguishes the applicant's goods or services from those of others is registrable unless a listed ground bars it (§ 16.051). A Texas registration supports a claim for infringement of the Texas-registered mark (§ 16.102), with remedies including an injunction, profits or damages, and up to three times those amounts where the infringer acted with actual knowledge of the mark or in bad faith (§§ 16.102(b)-(e), 16.104). Texas registration covers Texas only; it does not give nationwide rights.

Pinpoint: 15 U.S.C. § 1127. Related term: Trademark.

Sources.

• 15 U.S.C. § 1127: definitions, including trademark. law.cornell.edu
• 15 U.S.C. § 1051: application for registration, based on use or intent to use. law.cornell.edu
• Tex. Bus. & Com. Code ch. 16: Texas trademark registration, including registrable marks (§ 16.051) and applications (§ 16.052). statutes.capitol.texas.gov

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