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Written by : Alvin Isom
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does having my business name trademarked prevent other businesses from using it it depends many people assume that getting their business name trademarked means that no one else can use it however that's not necessarily the truth the whole truth and nothing but the truth the point of a trademark is to prevent confusion about the source of products or services therefore i can only prevent people from using the same or similar trademark where their use is likely to create confusion this would prevent similar businesses from using the same business name however depending on how distinctive the name is it might not prevent others from using that name in different industries this is why you can have a dove chocolate and a dove soap or domino's pizza and a domino's sugar at the end of the day the more distinctive your business name is the more protected it will be as a trademark until next time remember this is information not advice you
Thanks for your comment India Mollberg, have a nice day.
- Alvin Isom, Staff Member
hi i'm stan muller this is crash course intellectual property and today we're talking about trademarks trademarks are everywhere and they can often be confusing so today we're going to talk about why just about everything seems to be trademarked and why trademarks are good for business mr mueller trademarks don't intersect with my life so i really don't see why we need to cover this one it's mueller and two just watch the video a trademark is any word name symbol or device used to identify and distinguish goods from those manufactured or sold by others and to indicate the source of the goods even if that source is unknown this bit about unknown sources means that you as a consumer don't usually know the person or factory that actually made the goods you buy before the industrial revolution you often knew exactly who was making your stuff and how it was made if you wanted a hammer you went to the blacksmith and you knew his name it was probably smith these days brand names assure you that you're buying the same product say toilet paper that you bought last time you went shopping you know like the stuff with the ripples seriously though getting the wrong medication because of brand name confusion or counterfeiting could be disastrous the rationale for granting legal protection for trademarks is that they're a type of property it demonstrates to the purchasing public a standard of quality and embodies the goodwill and advertising investment of its owner in other words companies expend a tremendous amount of resources to develop the product market it to customers and provide customer support and back up their product with warranties at its core trademark law functions as a consumer protection measure it prevents consumer confusion and makes it easier for consumers to select and purchase the goods and services they want for example if you go shopping for a new television you don't have to sift through dozens of products that are confusingly similar to samsung knockoffs like samsung or wamsung or sony you want the samsung maybe based on past experience or the company's reputation or even a funny ad because the law protects the manufacturer's use of the trademark you can be reasonably sure that the tv you're picking up at best buy is the tv you saw the verge reporters freaking out about at ces though trademarks are often classified as intellectual property the supreme court held in the 1879 trademark cases that congress has no power to protect or regulate trademarks under the intellectual property clause of the constitution which as you'll recall provides congress with the authority to regulate and protect copyrights and patents but this didn't stop congress from regulating trademarks they used the commerce clause of the constitution which gives them the power to regulate commerce with foreign nations and among the several states and with the indian tribes beyond trademarks there are also service marks which are very similar in that they distinguish one particular service an example of a service mark is that roaring lion at the beginning of mgm movies it's registered for motion picture production or something trade dress or product packaging is protected if it's distinctive and non-functional like the shape of a nutter butter cookie is protected trade dress what they ought to trademark is the smell some people have registered smells and we'll get to that in a minute trademarks are symbols and since human beings might use as a symbol or device almost anything that is capable of carrying meaning just about any conceivable thing can function as a trademark trademarks can be words like craft or lego logos designs like the nike swoosh aromas like there's a brand of oil for race cars that smells like cherries sounds like bong bong bong or bada or bada papa even though is a registered trademark you can register colors like ups brown or home depot orange or tiffany blue or john deere green personal names like taylor swift t swizzy's name is registered for 61 different goods and services from shoes to christmas tree ornaments even containers like the coca-cola bottle or this perfume bottle shaped like a human skull can be registered in short they can be almost anything that distinguishes the product from others and which signifies the source of the goods despite the breadth of potential trademark subject matter there are some limits on what can be a valid trademark recently a restaurant in texas asserted trademark rights in the flavor of its pizza one of the restaurant's former employees allegedly stole the recipe and opened up a competing pizza joint selling pizzas that tasted a lot like those made by his former employer the judge rejected the claim and dismissed the case finding that it is unlikely that flavors can ever be inherently distinctive because they do not automatically suggest a product source also functional product features are not protectable under trademark law pizza has only one function that's to taste delicious so there are three requirements for trademarks we just discussed the first one that a trademark has to be a symbol or device that a court or the patent and trademark office deems to qualify the second requirement is that the mark has to be used in interstate commerce and the third is that it has to identify the mark owner's goods and distinguish them from those manufactured or sold by others it has to be distinctive let's talk about trademarks and what makes them distinctive in the thought window quartz rank trademark distinctiveness along a spectrum ranging from unprotectable to highly protectable at the bottom end of the spectrum is generic generic names refer to stuff like using the word orange for the fruit or dog for the canine or cheese for cheese descriptive terms simply describe the goods and convey an immediate idea of what the product is such as break and bake for scored cookie dough suggestive marks require some imagination or perception to link them to the goods like chic for middle eastern food or fruit loops for a circular fruit flavored breakfast cereal arbitrary marks are common words used in unexpected ways apple for computers or amazon for book sales or shelf for gasoline the most distinctive marks are usually made up words fanciful marks are non-dictionary words such as google for an internet search engine or clorox for bleach or kodak for film fanciful arbitrary and suggestive marks receive automatic protection upon use because they're considered to be inherently distinctive so the owner of the break and bake mark has to show that consumers identify the product with nabisco or pillsbury or whoever makes the product i honestly don't know who makes it which isn't a good sign as to whether it's acquired secondary meaning generic terms are never entitled to protection this becomes important when trademarks are gradually assimilated into the language as common names through a process sometimes called generocide the public comes to view such names as referring to the products themselves rather than as distinguishing the source of the products as a result the name loses its protection words like escalators cel
Thanks Nathaniel your participation is very much appreciated
- Alvin Isom
About the author
I've studied ecological economics at Creighton University in Omaha and I am an expert in administrative law. I usually feel mischievous. My previous job was package designer I held this position for 26 years, I love talking about quidditch and terrariums. Huge fan of Chris Brogan I practice unicycling and collect books and periodicals.
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