Trademark Law

Trademark law protects words, phrases, logos, symbols, colors and shapes that businesses use to identify their goods and services. Trademarks can be registered with the government to get added protection under the law.

Generally, famous trademarks have more protection under the law 스토킹전문변호사 than ordinary marks. However, there are some important exceptions.

Trademark Registration

Trademarks serve the public policy function of facilitating consumer decision making by identifying the commercial source of products and services. A trademark can be a name, word, phrase, symbol, sound, smell, color, product configuration or other indication that designates the origin of goods or services. The most valuable trademarks are those that are uniquely associated with a particular good or service.

In the United States, a person can obtain federal registration for a mark by filing an application with the U.S. Patent and Trademark Office (USPTO). This application requires significant information about the mark, including how it is used in commerce and a description of the goods or services that it covers. The USPTO also offers a searchable database for applicants to check whether their mark is already being used by other parties.

Once an applicant files an application, it can take several months before the USPTO examiner reviews the application, looking for compliance with requirements in the Trademark Manual of Examination Procedure. The examiner will either approve the application for registration or reject it with a “preliminary rejection.”

A successful trademark registration gives the mark owner the right to prevent others from using a confusingly similar mark in commerce. However, this does not mean the mark owner has the exclusive right to use the mark for the type of goods or services it covers. For example, a person who has registered a mark for woodworking-related services cannot stop someone else from using the same mark to identify their own woodworking-related goods.

Trademark Infringement

Trademark infringement occurs when someone uses a mark without authorization in connection with goods or services that are similar to the mark owner’s and are likely to confuse customers about the source of those products or services. Courts use a variety of factors to determine whether there is a likelihood of confusion, including the strength and distinctiveness of the mark; the similarities between the marks; the nature of the goods or services; the purchasing habits of consumers; and the extent to which the marks are associated with similar products.

A business can sue for trademark infringement in federal or state court. Regardless of where the lawsuit is filed, federal registration provides significant advantages, such as proof of the mark’s validity, ownership and exclusive right to use the mark in commerce and gives plaintiffs a strong presumption of infringement.

Defending against a trademark infringement suit can be expensive and complicated. Trademark law includes several defenses to infringement, including descriptive fair use and nominative fair use. Descriptive fair use occurs when a party uses a descriptive term for purposes of identifying the actual product identified by the mark, such as newspaper references to entertainers and sports teams. Nominative fair use is a legal defense to infringement when a mark is used in relation to a product of another producer for the purpose of identifying that product, such as when a company uses its own name to identify its own products, like Ocean Spray’s use of “sweet tart” to describe one of its juice drinks.

Trademark Dilution

Trademark dilution is different from trademark infringement. Whereas trademark infringement requires confusion among consumers, dilution is the weakening of the distinctive quality of a famous mark. It can occur through blurring or tarnishment. In the United States, a trademark must be famous in order to be protected against dilution. This means that it must be recognizable to the general consuming public, and judges decide fame on a case-by-case basis. Famous marks are usually brand names, such as NIKE, COCA-COLA, and SONY. However, some jurisdictions protect commodity marks, including generic terms used in the sale of goods and services (such as insurance, banking, tourism, hospitals, education, transportation, and telecommunications), but not surnames or ordinary words found in the dictionary or in the English language.

For a famous mark to be diluted, it must be associated with unrelated goods or services. The marks do not have to be similar in order to cause dilution; they simply need to be famous. A court may award monetary damages in a dilution action, but unlike infringement claims, likelihood of confusion is not required to bring a dilution lawsuit. The holder of a famous mark can seek injunctions against unauthorized use, as well as trebled damages. Other remedies include the right to disclaim or license their trademark, and to prevent other companies from using the famous mark in certain ways.

Trademark Usage

Trademark law prevents businesses from using words, symbols, sounds, colors, or product configurations that are confusingly similar to an already-registered mark. This allows trademark owners to enforce their rights against those who are unfairly profiting from dilution, blurring, or tarnishment of their marks. For example, a company that sells soft drinks cannot use a symbol or name that is too similar to Coke’s and confuse consumers. The law also prohibits competitors from using identical marks on related products or services. This allows businesses to differentiate their products and avoid confusion from potential customers who might be misled about the origin of a product.

Unlike copyright or patents, trademark rights do not expire when a business stops using the mark in commerce. However, a trademark must be renewed every ten years to remain in effect. Trademark rights can also be limited to a specific geographic region. Businesses seeking federal registration must have used the mark in interstate or foreign commerce to qualify for this type of protection.

Trademark law recognizes two types of marks-commodity and service marks. A commodity mark identifies the producer of goods, while a service mark identifies the provider of a service. Generally, inherently distinctive marks (like Kodak for photographic supplies) and suggestive marks gain protection immediately. Descriptive terms, on the other hand, typically only achieve protection once they attain “secondary meaning” in the minds of consumers.