Michael Cohen (Michael N. Cohen, Esq.) gives expert video advice on: Are there certain designs that are not eligible for registration as trademarks?; Are there certain words that are not eligible for registration as trademarks? and more...
Are there certain designs that are not eligible for registration as trademarks?
If you're seeking to get a registration on a design mark, which means simply a design or some kind of logo, the design has to be unique and new. If the examiner at the USPTO finds that there's an existing mark that's similar to yours, then he'll reject your design mark application.
Are there certain words that are not eligible for registration as trademarks?
Generally any kind of descriptive words such as cars, food, or company are not trademarkable. What you want to do is apply for terms that are more unique as there are different strengths and hierarchies in the strengths of trademarks. The strongest kind of trademark you can get is one that's deemed to be arbitrary or fanciful or even suggestive, but generally descriptive and generic terms are not trademarkable.
What are 'descriptive' or 'generic' trademarks?
Descriptive and/or generic trademarks are trademarks that are generally not trademarkable. An example of a generic trademark would be Aspirin. Aspirin was originally trademarkable, but through time people referred to it as simply “Hand me an aspirin”, so everyone has to use that term now, just like the term “automobiles.” Therefore you cannot trademark certain terms that other people need to use, they're just not trademarkable. Descriptive terms describe something you're trying to do or what exactly the goods or services are, so you cannot preclude other people from using certain terms that are necessary to describe their goods and services. That is also not trademarkable.
How are the damages for trademark infringement determined?
There are different kinds of remedies for trademark infringement. The most common one is injunctive relief. An injunction typically stops the infringer from doing what they are doing, so if they are using your infringing mark and you are granted an injunction from the judge, he will order them to stop using that trademark, or some variation of it. The other kind of remedies are damages. Damages are monetary relief but you have to prove how you were damaged by proving your profits and the defendants profits.