DorsiaDistinctiveTradeDress - Table of Contents...

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Table of Contents Introduction I. History: a. At common law trademark concept grew out of unfair competition doctrine of passing off. Today we consider trademark law to be a type of unfair competition law. b. Passing off: Taking unfair business advantage of someone by purporting that the goods you were selling were the goods of someone else. Taking their identity, using their good will. II. In U.S. law, we have two types of trademarks: a. Common law, unregistered, trademark rights: i. Based on having a sufficient identifier and using it in commerce. b. Trademark Register: i. When you register a trademark that gives you certain important litigation presumptions. ii. And, so most companies doing business will at some state decide to register their trademarks. c. Civil law countries in Europe and Latin America, trademarks solely creatures of registration. III. Lanham Act, 1946 : a. Passed through Commerce Clause powers: b. Unique in that there is federal common law for trademarks. Lanham Act § 43. IV. Trademark Theory & Justification: Senior user of a mark may prevent junior users from employing the same or a similar mark where there is a likelihood of confusion between the two marks. a. Provides consumer protection. Trademark is a guarantor of the goods you are purchasing. b. Association between brand name goods and company’s ability to provide quality. c. Reputation of the producer has its own value for the producer: referred to as good will. Brand becomes more valuable, though this is slightly more controversial. d. Economically, there were people, we consider trademark to perform an efficiency function. Know what it is you want to buy: Hard to argue against that. e. Initial idea of trademark is it helps consumers buy my good instead of someone else’s and not be concerned with what they are buying. Avoiding consumer infusion.
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f. Recent secondary justification: Brand itself has value irrespective of whether someone is using it in a confusingly similar way. Particularly strong in U.S. Found in with anti-dilution doctrines. g. Protect investment: In the creation of the mark, advertising and promoting the association between the product and mark and product related investments such as high quality raw materials What can be protected as a Trademark? 1. : Trademark is the global term, essential same rules. a. Trademarks: Protect goods: Lanham Act sec 45 i. Any word name or symbol or device or combination there of 1. Used by a person, or 2. Which a person has a bona fide intention to use in commerce and applies to register on the principal register (not supplemental) established by this act, to identify and distinguish his or her goods, including a unique product, from those manufactured or sold by others and to indicate the sources of the goods even if that source is unknown b. Service Marks: Protect services (AETNA, Greyhound) i. Same definition as trademarks just for services, plus: 1. Titles, character names, and other distinctive features of radio and TV
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DorsiaDistinctiveTradeDress - Table of Contents...

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