By definition, a trademark is an identification that a name, symbol, or label is proprietary and legally restricted to the use of the owner. Trademark use indicates that an owner intends to enforce its interests in a trademark.

Trademarks are traditionally made up of marks (letters, numerals, words, logos, pictures and symbols).. There are also nontraditional trademarks, which fulfill the trademark function, but are not made up of traditional marks. Nontraditional trademarks could range from colors to sounds or textures.

Trademarks must have distinctive character to be prima facie (sufficient, if not rebutted) registrable. Such marks are said to be inherently distinctive. If a trademark that does not display distinctive character has been used to the degree that the public exclusively associates the trademark with a particular owner, it can be rigistrable on the basis of acquired distinctiveness or secondary meaning. A trademark may also be considered registrable if it is considered an arbitrary trademark. An arbitrary trademark isn’t prima facie registrable, but because the mark has no meaning within the context of the product category, it likely has sufficient distinctive character.

If a trademark is not used and an owner does not attempt to enforce rights, the trademark may be considered abandoned. Because use is important to maintaining a trademark, there are several key steps that a business can take:

• Give notice. If a trademark is unregistered, notice can be given with the trademark (”TM”) or service mark (”SM”) symbols. If it has been formally registered, the registered symbol (”®”) can be used. You can also give notice through a legend, which is generally the small text at the bottom of a page.
• Use it, and use it right. Remember that trademarks are designed to identify the source of a product or service. Because of this, trademarks must be affixed to a product or service. Also remember that trademarks must be distinctive. Because of this, trademarks should be used distinctively. Also, remember that trademarks are, essentially, proper adjectives. This is why we often see trademarks followed by generic nouns or verbs (eg. “Widgiwig widgets”, where “Widgiwig” is the trademark and described the generic noun widgets.)

Trademarks are generally only owned within the context of a limited market (or product category). Because trademarks are designed to provide consumer protection by assuring the public as to the origin of a product or service, rather than to strictly enforce the intellectual property of an owner (as would be the case with a Copyright), this is generally inline with the public policy goals of trademark offices.

If a trademark is registrable, the registration of the mark can extend rights into jurisdictions that do not recognize rights arising through use alone. Trademark owners can indicate that a trademark is registered through the use of the registered (”®”) symbol.