On a final note, sometimes trademarks are not initially deemed to be generic terms, but they become generic terms over time. Genericide refers to a trademark losing its protection for this reason. Aspirin, for example, was once a trademark owned by Bayer. But over time, it became used to identify painkillers in general, so Bayer lost ownership of the name. **Trademarks are done geographically. If I get a trademark in Northern California and the surrounding area, someone can use the same mark in another area, unless it is federally registered. 3. Trademark Infringement Lawsuits
What happens in trademark infringement laws? Imagine that your company holds a trademark on its name. Imagine further that another business starts to use a very similar name. When can you take legal action, and what kinds of remedies can you seek in court? Many people might initially think that a trademark holder's rights are entirely associated with how closely a trademark is copied (whether two company names sound the same or look the same). In reality, the key legal standard is often whether a likelihood of confusion exists. To win in court, a plaintiff must usually demonstrate that consumers would tend to be confused about the origin of a product. Sometimes products may have identifiable marks but not be confused, and then the case likely won’t get damages. When a plaintiff can show a likelihood of consumer confusion, it can typically ask a court for an injunction to prevent further misuse of its trademark. Even if a trademark holder cannot establish a likelihood of confusion so as to win a trademark infringement case, it may be able to prevail on a dilution theory. If Al McDonald opened up a bagel store which he called McBagels, consumers might not think that the real McDonald’s hamburger folks were involved, but he would blur or whittle away the McDonald’s mark for its hamburgers, damaging the product identification feature of McDonald’s trademark. And if Al’s bagels were terrible, they might tarnish or disparage McDonald’s trademark, hurting the affirmative associations that the mark conveys. The federal Trademark Dilution Revision Act (TRDA) provides federal anti-dilution protection for famous trademarks. The assigned reading outlines several factors that are used to determine whether a mark is famous. The textbook then presents an interesting case that expands on many of the trademark ideas raised so far: University of Texas v. KST Electric . In the case, a company created several logos that were very similar to the longhorn silhouette that graces the sides of UT football helmets (and millions of caps, coffee mugs, and t-shirts). **Some trademarks can become generic and therefore unprotectable, like escalator, cellophane and aspirin. (This is called genericide.) Remedies: injunction and damages. There is escalating criminal penalties for repeat offenders.