Lawyer I Trust Guide · General U.S. information · Reviewed September 16, 2026
A trademark is a vital tool for businesses and creators, serving as a unique identifier that distinguishes the goods or services of one source from those of another. In the United States, trademark law is designed to protect both the owner of the mark and the consuming public. By ensuring that consumers can reliably identify the origin of a product, trademark law prevents confusion in the marketplace and encourages fair competition.
Defining Trademarks and Their Scope
At its core, a trademark is any word, phrase, symbol, design, or combination thereof used in commerce to identify the source of goods. While logos and brand names are the most common examples, the scope of what can be protected is broader than many realize. Depending on the circumstances, shapes, sounds, fragrances, and even specific colors may be eligible for registration as a trademark if they serve to distinguish a product in the marketplace.
However, not every mark is eligible for protection. To be legally protectable, a mark must generally be distinctive. The law categorizes marks along a spectrum of distinctiveness. Marks that are considered “arbitrary,” “fanciful,” or “suggestive” are viewed as inherently distinctive and are generally easier to protect. Conversely, “descriptive” terms—those that merely describe the qualities or characteristics of a product—require proof that they have acquired “secondary meaning” in the minds of the public, meaning consumers have come to associate the term with a specific source rather than just the product category itself. Generic terms, which refer to a general class of products, are never eligible for trademark protection because they cannot function as a unique identifier.
The Role of the Lanham Act
The primary federal statute governing trademarks in the United States is the Lanham Act, enacted by Congress in 1946. This legislation established a national system for trademark registration and provides the legal basis for protecting owners against the unauthorized use of similar marks. Under the Lanham Act, a trademark owner can pursue legal action if another party’s use of a mark is likely to cause consumer confusion regarding the origin, sponsorship, or approval of goods or services.
The Lanham Act also incorporates the “functionality doctrine.” This principle dictates that features essential to the function of a product cannot be trademarked. The rationale is that allowing a company to claim exclusive rights over a functional aspect of a product would grant them an unfair competitive advantage and inhibit innovation. If a feature is necessary for a product to work or is cheaper to manufacture, it generally cannot be protected as a trademark.
Registration and Enforcement
While federal registration with the U.S. Patent and Trademark Office (USPTO) is not a prerequisite for trademark protection, it offers significant advantages. Registration serves as nationwide constructive notice of the owner’s claim to the mark, which can be a powerful tool in enforcement actions. Unregistered marks may still receive some protection under federal law, particularly through claims of false designation of origin or false advertising, but the burden of proof is often higher for the owner.
To prevail in a trademark infringement claim, a plaintiff must typically demonstrate that they possess a valid, protectable mark and that the defendant’s use of a similar mark in commerce is likely to cause confusion among consumers. The “likelihood of confusion” is the central inquiry in most infringement cases. Courts look at various factors to determine whether a reasonable consumer would be misled about the source or affiliation of the goods. If a mark is found to be infringing, the owner may seek various remedies, including injunctions to stop the use of the mark or, in some cases, monetary damages.
Sources and further reading
Educational information only. This guide is not legal advice. Laws and procedures vary by jurisdiction.