Trademarks are devices that sellers use to identify their goods or services, and distinguish them from those of others. Trademark law prohibits product imitators from passing off their goods or services as the products of others. Trademark law guarantees exclusive trademark rights to the originator of a mark. This mark is assumed to yield several benefits.
Trademarks may be protected under either state common law, the federal statute known as the Lanham Act, or both. Texas and the federal rules concerning trademark validity and the definition of infringement are similar, but not identical. Determining a company's trademark rights involves a separate consideration of both Texas and federal law.
To obtain rights in a trademark, the mark must be actually affixed to the goods or their containers. In the case of services, the mark must be displayed in the sale or advertising of those services.
For the purposes of determining if common law trademark rights have accrued, and for determining if a final federal registration will be issued, one must make genuine commercial sales of the goods with the trademark attached. If federal trademark rights are at issue, the mark must eventually be used in connection with sales in interstate commerce. For the purposes of establishing a right to register under the Lanham Act, a minimal number of sales will suffice to satisfy the use requirement. If two parties are competing over who will obtain the common law trademark right, the rule is that the first merchant to use a mark properly in a given area will be held to be the common law owner of that mark, but only if its use has been continuous and uninterrupted.Determining the validity of a mark will depend upon its distinctiveness, which in turn depends upon whether it is arbitrary, fanciful, or suggestive. Marks that may become distinctive include descriptive terms, deceptively misdescriptive terms, geographic terms, surnames, and slogans. Some words are incapable of distinctiveness, while in other cases, words that at one time functioned as a trademark may lose their distinctiveness and eventually their trademark rights.