A form of intellectual property, trademarks are legal identifiers that distinguish a service's or product's ownership. Anything that uniquely identifies a brand, like logos, phrases, images, and even scents, can be trademarked—as long as that identifier isn't the product's primary purpose and is distinct. To receive a trademark, brands must file with the United States Patent and Trademark Office.
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Trademarks can extend to phrases and slogans when the words become brand identifiers. Some phrases that have been trademarked are famed boxing announcer Michael Buffer's "Let's get ready to rumble!" and reality television star Paris Hilton's "That's hot."
Trademarks, copyrights, and patents are all intellectual property classifications that give exclusive ownership of ideas and concepts to individuals or businesses. Patents usually refer to innovative products or processes, copyrights are centered around the right to reproduce content, and trademarks usually involve branding elements, like names, logos, and distinct product elements.
In 2017, tech company Apple filed for the trademark to a black-and-white image of a Granny Smith apple in Switzerland—a request that was only partially granted. Apple wanted full control over the image, but many worried that granting the trademark would open up too many opportunities for the company to own the rights to the mere shape of an apple.
Scents, when they are truly unique and identifiable to a particular brand, can be trademarked. Any trademark on a scent must pass two tests: distinctiveness and non-functionality. In order to be trademarked, the scent of a product can't be the primary purpose of that product (like a candle or a perfume), and the scent has to be distinct. Some of the trademarked scents include Play-Doh and the pain-relief patch Salonpas.
In the US, brands can technically use a trademark without actually filing a trademark with the United States Patent and Trademark Office—which is where the ™ symbol comes from. However, brands that have officially filed trademarks can use the ® symbol in their branding.
Taylor Swift holds trademarks ranging from her album titles and song lyrics to the names of her cats. While the sheer amount of trademarks may seem excessive, it's one way Taylor Swift can protect the integrity of her brand and make sure everything that's branded as Taylor Swift actually comes from her.
There are multiple approaches to evaluating the value of a trademark. Some strategies include analyzing the value of royalty payments a trademark produces and the cost of recreating the trademark or brand.
When a brand becomes so popular that consumers regularly call the product by the brand name like a noun or verb, that trademark becomes generic because consumers no longer associate a specific brand with a certain product. A generic product can hurt a company's right to trademark or even cause companies to lose it. (Some users may experience a paywall.)
Many products that have become household names started out as first-of-a-kind items. As those products grew in popularity, the brand name became the default name for the product.
In 2024, "Steamboat Willie"—the 1928 Walt Disney animation with the first depiction of Mickey Mouse—entered the public domain. While anyone is free to build on the original characters and storyline of "Steamboat Willie," Disney still owns the trademark for Mickey Mouse, so any branding with the character's depiction that appears to be from Disney is off-limits.
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