What is a trademark?

Trademark law regulates brand names that populate the marketplace, including Google, Apple, and Facebook.55 U.S. Trademark law provides protection to both registered and unregistered marks56 and was developed to (1) incentivize producers to invest in quality; (2) reduce transaction costs, such as consumer search costs, and (3) promote free competition in business and trade.57 A trademark can be “any word, name, symbol, or device, or any combination thereof […] used by a person […] to identify and distinguish his or her goods, including a unique product, from those manufactures or sold by others and indicate the source of the goods, even if that source is unknown.”58 Thus, trademarks may include words (i.e. “Apple,” “Google,” or “Facebook”), phrases (i.e., Apple’s “Think Different” slogan or Google’s “The Web is What You Make of It”), colors (i.e., UPS’s brown UPS trucks or TMobile’s use of the magenta color),59 sounds (i.e., “Google Dynamic Virtual Surround” software for audio and surround sound), scents (i.e., “FLOWERY MUSK SCENT” in Verizon stores),60 textures (i.e., textures of wines), motions, building exteriors and interiors, product shapes (i.e., Apple’s assertion over iPhone shape),61 or product packaging (i.e., Coca Cola’s bottle packaging). Trademarks serve to lower consumer search costs and incentivize producers to produce “consistent levels of product quality” by allowing consumers to identify the source of the goods or services.62 When a consumer sees a product with a trademark, the consumer is able to identify that the product is made by a particular source, which enables the consumer to decide whether he or she liked or disliked “other similarly marked items” in the past.63 Trademarks are valuable because they allow businesses to cultivate their brands and goodwill (or reputation relating to its products and/or services).64 For example, if a trademark owner provides an inconsistent level of quality, consumers may be less incentivized to purchase the products, which reduces the overall value of the trademark.