BLAW 280 Trademark Infringement

BLAW 280 Trademark Infringement - OUTLINE OF TRADEMARK LAW...

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OUTLINE OF TRADEMARK LAW A trademark is a word, name, symbol or device which is used to distinguish the goods of one person from those manufactured or sold by others. A service mark is similar to a trademark except that it identifies a service rather than goods. For the most part the legal rules governing service marks are identical to those used for trademarks. If a person or corporation owns a trademark, no one else may use it for goods which he or she produces. In order for a mark to be valid, it must be distinctive . In order to determine if a proposed mark is distinctive it is placed into one of 5 classifications. 1) Arbitrary. A mark falls into this category if it does not in any way describe the product or any characteristics of the product. (Examples: “Blue Diamond” as a mark for nuts or “Green Leaf” as a mark for insurance.) An arbitrary mark is always distinctive – it can serve as a valid trademark. 2) Fanciful. A mark falls into this category if it conveys no meaning at all other than its trademark meaning. (Examples: “Xerox” as a mark for copy machines or “TLD-5” as a mark for fertilizer.) A fanciful mark is always distinctive – it can serve as a valid trademark. 3) Suggestive. These marks indirectly describe the product or service that they identify. The consumer must engage in some sort of mental process to connect the mark with the product. For example, “Greyhound” as a mark for a bus service suggests that greyhounds run fast – maybe the buses do the same thing. Other examples are “Coppertone” for suntan lotion and “Roach Motel” for insect traps. Still other examples are “Cheetos” and “Cheeze-It” for snacks made with cheese; “Pop-Secret” for popcorn; “Rold 1
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Gold” for pretzels and “Jell-o” for a product made from gelatin. A suggestive mark is always distinctive – it can be a valid trademark. 4) Descriptive . These marks actually describe the product or one of its characteristics. For example “Tasty Cakes” for packaged cake products. Another example might be “Wheat Thins” for crackers made from wheat. Additional examples would be “Big Gulp” for a large soft drink and “Big Brew” for coffee sold at 7-11 stores. A descriptive mark can be a valid trademark only if it can be shown that the mark has acquired secondary meaning. Secondary meaning exists when it can be shown that consumers in fact associate the mark with goods produced by the person who claims ownership of the trademark. This can be proved by marketing research surveys. It can also be established by showing long and extensive use by the person claiming the mark. This claim can be strengthened by showing that the mark was used in advertising. The Lanham Act – the federal trademark statute – provides that
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BLAW 280 Trademark Infringement - OUTLINE OF TRADEMARK LAW...

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