Understanding how brands actually function under U.S. trademark law
Key Topics Covered:
- What qualifies as a trademark under U.S. law
- How trademarks differ from business names and decorative branding
- The role of distinctiveness, functionality, and use in commerce
- How trade dress, colors, sounds, and other non-traditional marks are evaluated
- Why public perception and source identification matter in trademark analysis
At the beginning of the year, many business owners are taking inventory. New goals. New plans. Maybe even a new name, logo, or product line that finally feels “right.”
That’s usually when the word trademark starts floating around.
In everyday conversation, people use “trademark” to mean almost anything brand-related. A business name. A logo. A catchy slogan. And while that’s understandable, trademark law is more precise—and more strategic—than that.
At its core, a trademark isn’t about creativity. It’s about recognition.
A trademark’s real job: pointing to source
Under U.S. federal law, a trademark is anything that helps the public identify where a product or service comes from. The Lanham Act defines a trademark broadly to include any word, name, symbol, device, or combination of these that is used—or intended to be used—to identify and distinguish one party’s goods from those of others and to indicate their source, even if the consumer doesn’t know the source by name.
A service mark works the same way, just for services instead of physical goods.
Put more simply:
A trademark is the signal that tells customers, “This came from that business.”
If something doesn’t perform that source-identifying function, it may be branding—but it may not be a trademark in the legal sense.
What can qualify as a trademark?
Traditional trademarks (the familiar ones)
Most trademarks look exactly like what people expect to see on packaging, websites, storefronts, or advertisements:
- Words and brand names
- Phrases and slogans
- Logos and symbols
- Stylized lettering or designs
If the public sees one of these and understands it as identifying a single source of goods or services, it can function as a trademark.
That “public perception” piece is critical. Trademark law is less concerned with what the business intended and more concerned with how consumers actually understand what they’re seeing.
Non-traditional trademarks (closely examined)
Trademark protection isn’t limited to words and logos. In some cases, U.S. law recognizes non-traditional trademarks—but only when they truly act as brand identifiers rather than decoration or product features.
These can include:
- Trade dress: the overall “look and feel” of a product or its packaging, such as shape, layout, or presentation
- Colors: in limited situations, when a color identifies a particular source and isn’t needed for practical reasons
- Sounds: distinctive audio cues that consumers associate with a single source
- Scents: rarely, but sometimes—if the scent identifies source and isn’t functional
These types of marks often face more scrutiny because they can easily overlap with product design, common aesthetics, or functional features. Trademark law draws a firm line between identifying a brand and giving one business a monopoly over useful or expected product features.
What usually does not qualify as a trademark?
Business names aren’t automatically trademarks
A business name—sometimes called a trade name—identifies the company itself. That’s different from identifying the source of specific goods or services.
A trade name can also function as a trademark or service mark, but only if it’s used in a way that tells consumers: “This product or service comes from that source,” not merely “This is the name of the company.”
How the name is used matters just as much as what the name is.
Decorative or informational wording often fails
Words or designs that appear on products simply as decoration or as a message often don’t qualify as trademarks. A large slogan across the front of a shirt, for example, may be seen as expressive or ornamental rather than source-identifying.
When consumers don’t view the wording as a brand indicator, it can fail to function as a trademark—even if the phrase itself is clever or original.
“Use in commerce”: where trademark rights really begin
One of the most common misconceptions about trademarks is that registration creates rights. In the U.S., that’s not entirely true.
Trademark rights generally arise from use in commerce—meaning the mark is actually used in connection with goods or services in a way that reaches consumers. Federal registration can provide powerful advantages, including nationwide presumptions and additional enforcement tools, but registration usually strengthens existing rights rather than creating them from nothing.
Equally important: trademark ownership belongs to the party that controls the nature and quality of the goods or services offered under the mark. This becomes especially important when marks are used by related companies, licensees, or distributors. Filing an application in the wrong name can undermine the entire registration.
Why distinctiveness and functionality matter
A trademark must be distinctive
To function as a trademark, an identifier must be capable of distinguishing one source from others. Some marks are inherently distinctive because they’re unusual in context. Others become distinctive over time as consumers come to associate them with a single source—a concept often called secondary meaning.
Without distinctiveness, there’s nothing for trademark law to protect.
Useful features generally aren’t protected
Trademark law is not designed to protect things that make a product work better. Features that are functional—such as a shape needed for performance, a color that serves a practical purpose, or a scent tied to how a product works—generally can’t be protected as trademarks.
This principle shows up often in disputes involving product design, packaging, and non-traditional marks. The goal is to prevent trademark law from blocking fair competition.
A note on collective and certification marks
The statute also recognizes additional categories that consumers encounter regularly:
- Collective marks, used by members of an organization to indicate membership or that goods or services come from members of that group
- Certification marks, owned by a certifying body and used by others to show compliance with standards like quality, geographic origin, or materials
These marks are especially common in industries where standards and origin matter—even if consumers don’t always realize they’re encountering trademark law at work.
The practical takeaway
A trademark is anything that tells the public: “This product or service comes from us—not someone else.”
It might be a word, logo, slogan, product packaging, product design, color, sound, or—occasionally—even a scent. But to qualify, it must actually function as a brand identifier, be distinctive, and be used in commerce, while avoiding protection of features that are functional or purely decorative.
In the next post, we’ll look at why businesses choose to register trademarks, and how registration fits into turning brand use into a protectable business asset.
About Castlegate Law & How We Help
At Castlegate Law, we work with entrepreneurs, founders, and growing businesses on the practical and strategic aspects of trademark law—helping them understand what qualifies as a trademark, when registration makes sense, and how the federal trademark process works in practice.
Our work includes advising on trademark distinctiveness, functionality, and use in commerce; evaluating risks and opportunities associated with brand protection; and guiding clients through federal trademark registration with an eye toward long-term business strategy—not just filing paperwork.
We regularly assist businesses at the idea stage, during rebrands, and as brands begin to scale—helping turn names, logos, slogans, trade dress, and other source-identifying elements into enforceable business assets when appropriate.
If you are building or using a brand and want clarity on how U.S. trademark law applies to your situation—or what steps may help protect brand value as your business grows—we can help you understand your options and next steps.
To learn more or to speak with our team, contact Castlegate Law to schedule an introductory trademark discussion.