Own Your Mark!

shutterstock_490261243To trademark a thing is to attempt to make it timeless – and defensible. Trademarks, however, weren’t always around. For millennia, no one truly owned what they made. The Parliament of England passed the first trademark law in 1266 under the reign of Henry III, requiring all bakers to use a distinctive mark for the bread they sold.

The King meant to ensure quality and hold bakers to a standard. He also, unwittingly, turned bakers into brands and bread recipes into the world’s first intellectual property. Flash forward to now, and modern law considers a trademark to be a form of property.

Alchemy!

In the United States, three symbols may be used with trademarks and service marks: ®, TM and SM. An ® may be used only if the mark is registered with the Federal Trademark and Patent Office. It is unlawful to use the ® if the mark is not registered.

In contrast to trademarks, service marks are marks used in connection with services, not goods or things. A service mark is established by using the mark in advertising services, such as on the trucks of plumbers. For communications services, however, a service mark may consist of a sound (a “sound trademark”) in the process of delivering the service. MGM’s lion roar is a service mark.

“I dyed my hair this crazy red to bid for attention,” Lucille Ball explained in her autobiography. “It has become a trademark, and I’ve got to keep it this way.”

With all due respect to Ms. Ball, never confuse a trademark with a “trademark look,” an informal term for the iconic appearance of a performer or character. Anyone can dye their hair “Lucy red” without risking prosecution.

But there will only be one sitcom named I Love Lucy in history starring a zany genius named Lucy. You could, of course, pitch a show about the red-headed wife of a bigband leader without violating any marks. That said, why try? Nothing will ever top I Love Lucy. Develop something new you can call your own, that the world has never known.

Then trademark it.