bb.outline.trademarks&patents

bb.outline.trademarks&patents - Intellectual...

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Intellectual Property – Trademarks & Patents Corresponding Reading Assignment: Text: Pages 261 – top of 272; bottom 273 – 279; 283 – 288; 292 - 298 1. Trademarks a. Definition: any distinctive word, phrase, symbol, or design adopted for the purpose of identifying the origin of goods being offered for sale i. Mark, motto, device, or emblem that a manufacturer uses to identify itself by placing the mark on its goods ii. A trademark benefits consumers by acting as a symbol enabling them to identify goods or services that have been satisfactory in the past and to reject those that have been unsatisfactory. iii. A trademark motivates businesses to maintain or improve the quality of their goods or services over time to reap the benefits of a well-earned public trust in a mark. iv. Trademark law also governs service marks, used to identify the origin of services. v. A company’s name may or may not be protected as a trademark. If the company uses its name, such as Microsoft or IBM, to serve trademark (branding) purposes, the name is protectable as a trademark or service mark. vi. Trademark law also protects “trade dress”- very distinctive packaging or nonfunctional product design if it serves the same purpose as a trademark. b. Trademark Infringement : occurs, therefore, when a competitor of the trademark owner uses a mark so similar to the owned trademark that purchasers of the competitor’s goods are likely to be misled as to the origin of the goods that they are purchasing. i. Occurs when same mark or similar mark is used by another in an way that causes consumer confusion ii. Can occur even if the defendant did not intend it (or even if the defendant didn’t know about the plaintiff’s mark).
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c. Related Marks i. service marks - a mark used to identify a business that provides a service, rather than a product ii. trade or business name - cannot be protected unless it is actually used as a brand on the product iii. Trade dress - overall appearance of service or product protectable as a trademark iv. The Lanham act governs marks that are used in connection with the sale of goods and services in interstate commerce. d. Protectability of Marks i. Requirements: 1. Must actually be used on product or service 2. ,must identify the source of that product or service 3. Secondary meaning- though use in market, consumers have come to associate your mark with your product 4. It must serve as a “source identifier.” This means that when a substantial number of buyers see or hear the mark, the associate it with a particular source- a particular seller, even if most buyers cannot recall the name of the seller. 5. Courts often say that a mark must have secondary meaning meaning that although a term may have some original meaning f its own, when a lot of customers see or hear it they mentally associate it with a particular seller; thus, the term “secondary meaning” describes the same idea as “source identifier.” 6. The trademark must serve a branding function 7. The owner must first establish that it has a protectable mark 8.
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