Page 8 - Grapevine May-June 2019

In The Winery

Trademarks Protect “Source Identifiers” stores to help distinguish them from competitors’
environments). However, slogans, words, and imag-
People generally associate trademarks with the es that appear merely as decoration will not qualify
protection of a brand. In more technical terms, for protection unless the applicant can demonstrate
what a trademark protects is a “source identifier.” that the item has achieved “secondary meaning,”
The purpose of trademark law is to protect consum- i.e., that the public has come to associate that
ers from being misled or mistaken as to the source item with the manufacturer. For example, in the
of a product. So, for example, if a consumer sees 1970’s McDonalds used the slogan, “You deserve
a pair of shoes with a certain famous “swoosh” a break today” in its commercials and other adver-
image on the side, they should be reasonably able tising. People came to associate this phrase with
to assume that pair of shoes was manufactured by McDonalds and in 1973 they were granted a trade-
Nike, Inc. and was made with the same degree of mark registration.
workmanship and quality that they have come to
expect from that company. That “swoosh” symbol, In general, marks also cannot be descriptive of the
therefore, acts as a source identifier to tell the pub- product or geographically descriptive of the source
lic that the product was made by Nike, Inc. in order to be registered as a trademark. For exam-
ple, one could not obtain a registration for just the
What may function as a trademark can be quite words “Red Wine.,” because it simply describes the
broad, including: the name of the business (e.g., product and does nothing to differentiate it from
Sterling Vineyards®), a logo (e.g., the “swoosh”), every other red wine on the market. Similarly,
a color (e.g., the Home Depot orange or the UPS an attempt in the year 2000 to register the name
brown), even a scent (e.g., Verizon owns a trade- “Napa Valley Winery” was refused, because the
mark on a “flowery musk scent” it pumps into its applicant could not demonstrate that people had
come to associate that name with its business as
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