What Can Be a Trademark: The Subject Matter of Trademark Law

70 questions on what can be a trademark, answered and cited by the UpLaw editorial team.

• Can a certification mark certify a person's qualifications?
• Can a company own a color as a trademark?
• Can a flavor be a trademark?
• Can a scent be a trademark?
• Can you rank candidate brand names on the spectrum?
• Does federal registration create a trademark?
• Does registering a domain name or forming an LLC create trademark rights?
• Does trademark law reward invention or artistry?
• Does verb use of a mark make it generic?
• How broadly did Qualitex read "symbol" and "device"?
• How did In re Forney refine the color rule?
• How did the Court cabin the Booking.com win?
• How do courts draw the descriptive/suggestive line?
• How does an expired utility patent affect a trade dress claim?
• How does the analysis run for a distinctive product-shape claim?
• How does the Lanham Act define a trademark?
• How is a failure-to-function refusal different from a distinctiveness refusal?
• How should an owner guard against genericide?
• How should counsel evaluate a proposed color claim on a product?
• If a feature of my product is both useful and distinctive, can I protect it?
• Is a "generic.com" term automatically generic?
• Is a trademark information about "what" or "whose"?
• Is distinctiveness assessed in the abstract?
• What are the five categories of the Abercrombie distinctiveness spectrum?
• What are the Morton-Norwich factors?
• What are the Seabrook factors?
• What did Iancu v. Brunetti add?
• What did Jack Daniel's v. VIP Products say about use as a mark?
• What did Matal v. Tam decide?
• What does Section 2(d) bar?
• What happens when packaging and configuration blur?
• What is a certification mark?
• What is a collective mark?
• What is aesthetic functionality?
• What is a standard-character word mark?
• What is genericide?
• What is the clean lesson of Booking.com?
• What is the difference between a generic and a descriptive term?
• What is the difference between a trademark and a trade name?
• What is the difference between product packaging and product configuration trade dress?
• What is the functionality doctrine?
• What is the Inwood test for functionality?
• What is the John Deere green problem?
• What is the rule of thumb for non-traditional marks?
• What is the single idea that unifies all of trademark subject matter?
• What is the test for genericness?
• What is the throughline across all of Section 2?
• What is the trade-off with a fanciful mark?
• What is trade dress?
• What must a color-mark owner prove?
• What other Section 2 bars round out the picture?
• What refusals does Section 2(e) gather?
• What should a product designer do about a useful feature?
• What survives in Section 2(a)?
• What three gates does every trademark subject-matter question pass through?
• What three rules follow from a certification mark's structure?
• What two audiences does trademark law serve?
• When can a slogan be a trademark?
• When is a sound inherently distinctive?
• Where does the constitutional line now run through Section 2?
• Which refusals can no amount of secondary meaning fix?
• Why can a generic term never be a trademark?
• Why can two businesses share the same name?
• Why did Vidal v. Elster come out the other way?
• Why does the law refuse protection to a famous, source-identifying functional feature?
• Why do geographic certification marks flip trademark's usual rule?
• Why do sophisticated owners register both a word mark and a logo?
• Why do surnames carry baggage as trademarks?
• Why might a red shoe sole be protectable but not a whole red shoe?
• Why was the security-alarm sound refused in In re Vertex?