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Intangible assets such as trademarks, copyrights and patents have the same basic attributes of ownership as any tangible property.  Then why do they seem so confusing?  While the attributes of ownership for intangibles are the same as for those you touch, the nomenclature, i.e. the labels used to describe the rights in intangibles, are different from that which we learned with respect to hard assets. Learn the language of intangible assets and you will be on your way to a better understanding.

Enforcement means being aware. It is important that you understand and are mindful of what is happening in the marketplace in which your trademarks exist. This includes your own use, use by licensees, distributors and affiliates, as well as unrelated third parties. It also means a proactive stance towards managing risks that can weaken value or in some cases result in a complete loss of rights.

What is "secondary meaning" or acquired distinctiveness?  Terms that describe the qualities, characteristics or ingredients of your goods are "descriptive" and cannot be registered as a trademark. Nor can those terms be used as a sword against infringers, unless the owner successfully proves that the mark has acquired a "secondary meaning" in addition to its literal meaning.  The question is whether the mark can be shown to be known by the public as a product from a unique source?  Is there a public association of the term with your product or service? For example, the owner of CHARCOAL STEAK HOUSE lost in an effort to enforce its name since it was held descriptive and the owner was unable to present enough evidence of secondary meaning.

A vital step in the trademark process is between the fifth and sixth year following registration. You must file affidavits showing that you are still using the marks in commerce or the registration will be canceled! Once canceled, others can file and take your rights. Additionally, the mark must be renewed at the end of ten years. A great example of the importance of trademark maintenance involves the use of CINDERELLA on peanut butter. It had been in use by the applicant since 1895, but the registration was allowed to lapse in 2001. The company re-filed to obtain the trademark only to be shot down and told they could not have the registration. The new application was denied on the grounds that it would be confused with a Disney registration for candy, chocolate, pretzels, and bread. This is a great example of how not paying attention, and/or not engaging trusted counsel as part of your team can result in a loss of rights.

How does a domain name differ from a trademark?  A domain is an address on the Internet.  It is the location of your website, and may or may not be used to offer particular goods and services to the public. Domain names are not a substitute for a brand.  Many domains cannot serve as trademarks, especially if they are only a descriptive term which describes the goods and services.  Trademark rights in domains can be registered if the term is distinctive and used to advertise and sell goods and services. An example of a descriptive domain with little or no trademark protection is
 

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