1 Gilson on Trademarks § 2.01

Summary

• [1] In General

  Trademark subject matter is potentially unlimited.1 A trademark may be a word, logo, design, scent, sound, color, personal name, container, building or any number of other signifiers.

  Nevertheless, not all designations qualify as trademarks. They must indicate the source of the product to consumers, a quality known as distinctiveness.

  Some material may never be distinctive, and some may lack distinctiveness but could gain it over time with consumer recognition. Only material that is distinctive can be eligible for legal protection in court. Similarly, only marks “by which the goods of the applicant may be distinguished from the goods of others” are registrable on the principal register of the USPTO.2 Those that are capable of distinguishing products but do not currently do so are registrable on the federal supplemental register under certain circumstances.3