100 Trademarks That Are Not Common Words/Colors/Designs and Might Get You Sued for Trademark Infringement

Can you get sued if you use the words Chapstick, Onesie, Popsicle, or Super Hero in your product listings? 

Yes! Not only can you get sued, but the owner of the word will most likely win for trademark infringement in court if you use the word to describe a good that is the same or related to what goods the trademarks protect. These words are brand names and not the common words for the goods.  If you use these words in your product descriptions or as hashtags on multivendor marketplaces, such as Etsy® or Amazon®, your shop will likely be closed for intellectual property infringement. One of the fastest ways to lose your business is to step on the intellectual property rights of another business.

Let’s start with basic information about trademarks.

What is a trademark?

Trademarks identify the source (maker) of goods or services.  You are very used to seeing traditional trademarks (words, slogans, symbols, and designs).  Did you know there are nontraditional trademarks as well?  Nontraditional trademarks are smells, textures, sounds, colors, and more. Trademarks protect the public from being duped into buying a counterfeit good or a service that they think comes from one company (source) but is being sold by another company.  For instance, if you purchase tape branded Scotch Tape, you know the tape is made by the 3M Corporation and you have an expectation of the tape being high quality.  If another company is allowed to sell a low-quality tape under the same brand name, you might be duped into purchasing the lower quality product because you expected it to be the high-quality product based on the goodwill 3M Corporation has built around its brand. Trademarks not only protect the public, they protect a company’s assets and reputation. Customers rely on trademarks to identify that the product or service is authentic and originating from a specific source. 

Why Kinds of Trademarks Exist and How to Know If Something is Trademarked

In the U.S., two types of trademarks exist: common law and registered.  Common law trademarks are marks used in businesses that are not registered.  As long as you are using a mark to identify you or your company as the source of the good or service you are selling, and you are not infringing the rights of another, you have trademark rights to the mark.  Registered trademarks have more power than common law trademarks.  When registering a trademark, classes for what goods and services you sell need to be picked.  There are 45 different classes for goods and services: classes 1-34 are for goods (physical objects that you ship to your customer) and classes 35-45 are for services. For example, at the most basic level, if you are a business that sells clothing, you might register a trademark under Class 025, but if you are a business in the entertainment industry, you might file under Class 041 for entertainment services.

When working to identify whether something is trademarked, first look to see if the company is using a trademark symbol: the TM and ® symbols.  You have seen these symbols smattered around on advertising on the internet. Most people don’t realize what those symbols actually mean, though. 

Common law trademarks (unregistered) are denoted with the TM or SM symbol. However, seeing a TM or SM does not mean that the purported owner of the mark has actual trademark rights to the mark, a trademark application pending or even has the intention to file for federal trademark protection. Oftentimes, the TM or SM symbol is used by a business to put the public on notice that they are claiming rights and possibly even ownership of that trademark when they don’t have a registration for it. 

TM is to be used for trademarks for goods, and SM (service mark) and is meant to be used for trademarks for services. Often, companies use a TM even when they sell services.  Using the “wrong” symbol, however, does not impact the company’s rights.  

The other symbol most people are familiar with is the ® symbol, which is supposed to denote a trademark that is officially registered with the USPTO (United States Patent and Trademark Office) and is federally protected. Only federally registered marks have the right to use the highly sought after and prestigious ® (circle R) symbol. 

The second way to identify whether something is trademarked is to do some research. All registered marks are searchable in the USPTO’s publicly accessible database. Unregistered marks are not listed anywhere but can likely be discovered through searching the internet, social media platforms, and multivendor marketplace.   

It is highly recommended that you to contact an intellectual property attorney and work proactively to avoid accidentally using someone else’s trademark or requiring your business to rebrand later after you realize your rights are infringing on someone else’s.

What does it mean to infringe upon someone else’s trademark? 

Trademark infringement is the unauthorized use of a trademark or service mark on or in connection with goods and/or services in a manner that is likely to cause confusion, deception, or mistake about the source of the goods and/or services.

Trademark infringement laws are in place not only to protect the owner of the trademark, but also to protect the public. If two trademarks are confusingly similar, consumers run the risk of buying a product they believed was something else and being misled into a purchase they did not want. Trademark laws are in place to prevent this from happening. 

The USPTO upholds protecting the public in the trademark application process as well. If your mark is confusingly similar to an already registered mark, or an application for a mark, you may not be able to register your mark because it would confuse consumers about the source of the good or service. 

Confused yet? Well, what about the case of Dove chocolate brand and Dove soap brand? They sound and look the same, but they are clearly two different brands coexisting without issue. How is that possible? 

Trademarks depend on the category of use. As mentioned previously, there are classifications for both goods and services, but those classes are broken down even further into specific itemized lists for each type of good or service. In this case, Dove chocolate is registered in a different class than Dove soap.  Even if a mark is registered, it may be possible to use the same mark for a different classification of goods or services, so long as consumers would not be confused as to the source of those goods or services. There are many more factors that play into trying to trademark something very close to an already registered trademark such as notoriety of a brand and their trademark(s), how long they have been in business, who their market is, etc., which is why it is always best to consult an Intellectual Property attorney before starting off on your trademark journey.  

There are even some “common” sounding words that are actually trademarked. If you’re a seller on Etsy®, eBay®, Shopify®, or Amazon®, or even if you sell through your own website, stay away from these words. They are brand names, not common words. They can get you into trouble! Though some of these marks may be considered genericized by some, they still retain active registrations with the USPTO.

Here is a list of 100 trademarks that you could potentially be sued for using, and result in your shop being shut down. 

List last verified on December 30, 2021

To reduce risk of infringement, use the generic name or description instead of the brand name.

Wait a second… doesn’t everyone use these trademarked words?

Trademarks can become generic when a mark becomes so common and prevalent that consumers use the mark to describe a category of products or services. Generic marks are not protectable.  Courts have already canceled many marks that were formerly registered marks but became generic over time. Once a mark is deemed generic, anyone can use the mark.  If the mark you want to use is questionably generic, ask an attorney who specializes in Intellectual Property to research the mark. 

Here is a shortlist of marks that used to be trademarked, but have fallen victim to genericide:

• Escalator
• Aspirin
• Yo-Yo
• Linoleum
• Laundromat
• Pilates

What if I am using a company’s mark?

The company will likely send a cease-and-desist letter demanding that you stop using their mark. If you do not comply with the terms of the cease-and-desist letter, the company may elect to file a lawsuit. If a lawsuit is filed, your options then become the following: you can attempt to fight the infringement claims or you can work with the company to come to a settlement agreement. In the alternative, the company/mark owner can also choose to license use of the mark or sell the mark outright, but this is less common.  If the lawsuit proceeds, the court will determine if your usage of the mark infringes on the mark owner’s rights. If the court decides that you are infringing, you may be liable for damages and other fees (such as attorneys’ fees) that the court would deem appropriate to compensate the company whose rights were being infringed. 

What do I do if a company claims my mark is infringing on theirs?

Hire an intellectual property attorney immediately to assess the situation. Your mark may ultimately be stronger and prevail over the other company’s mark, but every case is unique.

How seriously do companies take the protection of their trademark(s)? 

Check out this video released by Velcro employees and attorneys about the Velcro® brand name for a great illustration of a company educating others on why their brand name is not generic. Attorneys and companies will go to great lengths to protect trademarks. 

Registered trademarks are capital assets for a company.  They have a title and can be used as collateral for loans, like real estate or other real property. The value of one registered trademark can be 80% of the total gross revenue a company makes selling the branded product or service. With how much value trademarks add to the assets of a company, companies take protecting their trademarks very seriously.  If your company needs help harvesting the value of its trademarks, hire an intellectual property attorney to help.

Disclaimers

Nothing in this article is to be construed as legal advice, nor does anything in this article form an attorney-client relationship or privilege between Braun IP Law, LLC and the reader/viewer.

This article is referring specifically to United States Trademarks.  Mark validity varies from country to country, and just because a trademark is registered in the United States, does not mean that mark is registered in any other country.

Law is an ever-changing field. A word listed as a trademark may become generic with time, declared not generic by a court, or enter common use when the company no longer pays to keep the mark registered. 

Any intellectual property owned by another and used herein is fair use and not an infringement of any intellectual property rights. Any registered®/non-registeredTM trademark or trade name is the property of the manufacturer/service provider listed and used for reference and identification purposes only. All intellectual property information listed above is publicly available information accessible via the USPTO trademark electronic database.