IPSurvey.Fall2009_Overheads.Module5

IPSurvey.Fall2009_Overheads.Module5 - IP Survey Module 5...

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IP Survey, Fall 2009 1 5- IP Survey Module 5 Trademarks IP Survey, Fall 2009 2 5- Trademark Descriptive Arbitrary / Fanciful / Coined Suggestive Generic aspirin “Brilliant” for diamonds “Brilliant” for shoe polish “Brilliant” for canned apple sauce
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IP Survey, Fall 2009 3 5- Descriptive? character function feature quality ingredient nature purpose use characteristics dimensions, color, odor. . . IP Survey, Fall 2009 4 5- Generic -ness
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IP Survey, Fall 2009 5 5- Likelihood of Confusion factors 1. strength of the mark Based on the continuum of distinctiveness 2. proximity of the goods The closer the goods, the greater danger the public will mistakenly assume an association between the producers of the related goods, so the less tolerance for close marks Sold to the same class of purchasers? 3. similarity of the marks 4. evidence of actual confusion 5. marketing channels used 6. type of goods and the degree of care likely to be exercised by the purchaser 7. defendant's intent in selecting the mark 8. likelihood of expansion of the product lines IP Survey, Fall 2009 6 5- Likelihood of Confusion factors 1. strength of the mark 2. proximity of the goods 3. similarity of the marks Sight, sound and meaning Tested as encountered in the marketplace Compare the marks as a whole, don’t dissect unless trying to eliminate trademark coverage for generic, functional or disclaimed portions of a trademark or trade dress Similarities weigh more heavily than differences 4. evidence of actual confusion Persuasive proof, but difficult to prove, often brought by parties in unclear or insubstantial form Actual or anecdotal evidence, or with a survey, strictly screened 5. marketing channels used Similarities and differences of channels used 6. type of goods and the degree of care likely to be exercised by the purchaser 7. defendant's intent in selecting the mark 8. likelihood of expansion of the product lines
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IP Survey, Fall 2009 7 5- Likelihood of Confusion factors 1. strength of the mark 2. proximity of the goods 3. similarity of the marks 4. evidence of actual confusion 5. marketing channels used 6. type of goods and the degree of care likely to be exercised by the purchaser Standard is typical buyer exercising ordinary caution – the “reasonable purchaser” of the products at issue is who must be likely confused Wholly indifferent excluded, ignorant and credulous included Buyers with expertise in the field, or expensive product, may allow for a higher standard Effect of quality differences or equivalence 7. defendant's intent in selecting the mark Bad faith or intent to “palm off” is presumptive evidence that defendant will accomplish its purpose – deceive customers 8. likelihood of expansion of the product lines When goods are closely related, any expansion is likely to result in direct competition IP Survey, Fall 2009 8 5- Illustrations . . .
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This note was uploaded on 04/05/2010 for the course LAW LAW6571 taught by Professor Abbott during the Spring '10 term at Florida State College.

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IPSurvey.Fall2009_Overheads.Module5 - IP Survey Module 5...

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