Can you trademark a common symbol used in industry?

A trademark is a word, phrase or symbol that indicates the manufacturer of a product. When a manufacturer starts using a trademark to identify their goods United States trademark law grants the trademark owner certain exclusive rights. The purpose of trademark law is to protect consumers from inferior quality products. A trademark owner is granted the exclusive right to brand products with a trademark to prevent consumers from being confused about the identity of a product manufacturer. If someone other than the trademark owner marks products with the trademark in a way which causes consumer confusion, that is considered trademark infringement. A trademark owner can sue to stop trademark infringement with an injunction and to get monetary damages for trademark infringement which has occurred.

People not familiar with intellectual property law frequently confuse the different species of intellectual property. The concept of public domain is a facet of intellectual property law which exists in patent, copyright and trademark law. If something is in the public domain, the public is free to use it without reservation. Art which is copyrighted and inventions which are patented will eventually pass into he public domain when the term of protection expires. Trademarks can last forever provided the trademark is actively used in commerce to brand goods. If a trademark owner stops using a trademark to brand goods the trademark will eventually pass into the public domain.

The question then becomes can something which is in the public domain be claimed as trademark? In the United States it is possible to trademark something in the public domain. Words, phrases and symbols, that are in the public domain can be used as trademarks and can be registered as trademarks if no one else is already using them as trademarks.

An interesting trademark dispute is developing over a public domain symbol which is used internationally. On the bow of every ocean vessel there is a symbol called the International Load Line or the Plimsoll Mark. The Plimsoll Mark is named for Samuel Plimsoll, the British lawmaker which caused the mark to be mandatory on all British ships in the 1870s. In 1930 the Plimsoll Mark became mandatory on all international ocean vessels through international treaty. The purpose of the Plimsoll Mark is to warn crews when the ship is overloaded with cargo so that the ship will not capsize at sea.

In 2009 Plimsoll Gear successfully registered the Plimsoll Mark as a trademark on various products such as clothing. Around 2018 a website called gCaptain began selling shirts, hats and posters with a symbol similar to the Plimsoll Mark in honor of Samuel Plimsoll. Plimsoll Gear did not gCaptain’s Plimsoll Mark inspired merchandise. Plimsoll Gear sent a cease and desist letter to gCaptain demanding that gCaptain stop selling merchandise with the gCaptain version of the Plimsoll Mark. In it’s letter Plimsoll Gear acknowledges that the symbol on the gCapatin merchandise is not identical to their trademark, but Plimsoll Gear still feels that the symbols are similar enough to cause consumer confusion.

This case is still developing, Plimsoll Gear has a prima facie case but it is not clear who the winner would be if this case went to trial.

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