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Subject Matter Capable of Trademark Protection

Explore how to gain rights in a trademark, including the use in commerce requirement for all trademarks, the spectrum of distinctiveness, and how descriptive marks can acquire secondary meaning and become protectable trademarks.


All protectable trademarks have two things in common. First, they all identify a source of goods. Second, they’re not functional.

I.    The Requirement That Marks Be Source-Identifying

A trademark is source-identifying if it communicates to a consumer that the goods come from a single source. Marks that are source-identifying are also called distinctive marks. Trademark law seeks to protect this source-identifying function. It does so by creating liability for conduct that’s likely to...