Final Part 2_Intentional Torts and Civil Law_Eric Ortiz.docx

Marks and suggestive marks are given special

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marks and suggestive marks are given special considerations in court due to the creativity involved in formulating them. It’s almost unimaginable that two similar products sold by different companies with similar trademarks would have happened by chance, and trademark laws protect the creators of the mark from unlawful duplication of their products or services. Descriptive marks are marks which describe the creators and producers of the product more than describing the products themselves. These marks must have acquired a secondary meaning due to public consumption shifting the idea of those marks from the producer of the product to the product in general. A great example of this is Burger King. While burger is a generic term, the trademarked Burger King’s products are distinguishable from products at other restaurants that serve burgers. The last type of mark, a generic mark, is any mark that is entirely descriptive of the product. Using the Burger King trademark as an example, once again, if the 6
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company were to drop the “King” from their name, the restaurant named “Burger” would not be protected under copyright laws due to the fact that burger is a generic term [USC27]. The idea behind all of these trademark statutes is that there is little to no confusion on the part of the customer as to what company’s product the consumer is purchasing. Slide 7: Advanced Trademarks The U.S. Code states that a mark is protected under U.S. Copyright laws only if it is registered with the USPTO or if it is being used in commerce already. The US code describes commerce as any commercial activity that can be regulated by Congress [USC27]. Simply put, this means that if the U.S. congress doesn’t have jurisdiction over the product whenever it’s sold, the use in commerce statute can’t be claimed on an application for a trademark. This doesn’t mean that if a product is available in China that it can’t be trademarked in America. As long as that product is available for sell in the U.S., a copyright will, most likely, be available for registration. Note that due to the fact that state governments control their own in-state commerce, intrastate commerce does not automatically grant protection under the use in commerce clause. A product that is being sold on the internet is protected under the use in commerce statute due to the fact that online purchases can be made using long-distance, interstate phone lines, via internet, which constitutes interstate commerce [Wal15]. Slide 8: Copyright While trademarking deals with cues that relate a business to a product, copyright laws protect creators of literary, musical, graphic, or other artistic forms such as architecture and drama, from unauthorized reproductions of their works [Hol02]. Section 7
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102 of the U.S. Code explicitly describes protected works as being tangible reproductions, and not reproductions of an idea or concept related to the work [USC02].
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