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Written by : Ashely Dettling
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trademarks trademarks are kind of fun I mean freed marks are the face of the company to the marketplace your company will have a trademark almost certainly a trade name and the trademark you'll use on your products or services you know almost anything can be a trademark it could be of course a word and excellent or PepsiCo it can be a scent there are some perfume sense that it registered as trademarks you're probably gonna want to pick a trademark that somehow conveys to the marketplace what your product is all about what your service is all about the more distinctive your proposed trademark is the more powerful it would be the more likely it is to be registered it's typically analyzed that there is a series of protection levels from a purely fanciful term to a purely generic term as you travel from highly fanciful to purely generic terms the scope of protection is going to weaken and your likelihood of getting registration will weaken a purely fanciful term is certainly protectable just below fanciful terms such as Exxon or the arbitrary terms Cadillac for a car more frankly for dog food is a fanciful term it has nothing to do with dog food and so it's a powerful trademark descriptive is not protectable without secondary meaning which is to say that the marketplace recognizes that trademark as yours as designating some source in that case you can register it federally trademark terms that are a generic term for the product are not registerable as a trademark there are benefits to registering your trademark of course these benefits include the evidentiary value of having a federal registration which is dated of your use of the trademark trademark registration gives notice to the world that you're using it as a trademark in your particular area u.s. trademark rights accrue when you use your mark on goods or services in the marketplace in a lot of other countries trademark is strictly a creature of a registration but in the u.s. it comes from use now you would like to be able to have your trade more protected even before you use it and you can do this you can file what's called an intent to use trademark application it says to the Patent and Trademark Office I intend to use this as a trademark in this field on these goods or services and the examiner will determine whether or not your proposed trademark would qualify for trademark protection if it does you'll simply have an opportunity over the course of some period of time to submit a statement saying that you have now finally started using it at that point of course you're already registered or will be registered at that point and you'll have your protection in place keep records of trademark development it's good to have its test marketing can go towards supporting your registration and your rights in a trademark first and subsequent sales through commercial through to commercial quantities also keep records of your sales from prototype all the way through to full commercial production and sale also keep documents that establish the accuracy of the dates that you will put down if you decided to file for a trademark registration in the US or other countries the trademark office is quite serious about this you have to put down when you first started using it in commerce when you first started using in interstate commerce don't guess put down dates that you can back up with documentation now the test of infringement of a trademark is likelihood of confusion so if you choose a trademark that your competitor thinks is likely to confuse the marketplace they're going to challenge you you need to pick a trademark that is well enough away from those who are already out there in the marketplace so that they don't accuse you of infringement avoiding a problem is far better than solving a problem Kix several potential trademarks before you settle on one and have them vetted by your counsel there are searches that can be done of public indexes and they can find out whether anyone's using it or something similar to it so once again we have the perennial question how much resource TOI devote to trademark clearance in advance so I don't have a problem down the road what's the risk how important is your trademark to you and some industries trademarks are crucial consumer products for example in others it may not be as important in extreme cases private investigations have been used to find out whether there's a trademark in use that's likely to be a problem with yours well what if you do turn up a trademark problem there are solutions there's always solutions if you're not so deeply embedded into the use of that trademark the smart thing might simply to be to cut and run pick a different trademark and get going with that let the other one go you didn't know that it was a problem turns out it is cut your losses if you don't want to do that you might want to investigate whether the current trademark user is willing to license you if it's not a head-to-head competitor chances are fair that they might be willing to do that for a price that's it sensible to you that's reasonable the price of course might even be less than what it cost you to redo your trademarks you know if you are accused of trademark infringement just because they say it it doesn't make it so maybe you want to challenge their trademark maybe it's really not a trademark at all there are lots of famous trademarks that have lost their trademark status by becoming the generic term for that product band-aid is still a trademark but the truth is we all kind of use it as the generic term thermos was found not to be a trademark anymore after a time because everybody used it to refer to the vacuum bottles that we all use to keep beverages hot and cold so just because you're accused of infringement don't give up maybe that trademark is becomes you know and there are other problems too that you might be able to take advantage of the key question is whether or not there's likelihood of confusion if their trademark is different enough from yours or if their field of activity is different enough from yours even the seeming similarity of their mark and yours may not justify stopping you from using your market your way on your product you
Thanks for your comment Monet Penez, have a nice day.
- Ashely Dettling, 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 Maryjo your participation is very much appreciated
- Ashely Dettling
About the author
I've studied differential psychology at Athens State University in Athens and I am an expert in normative ethics. I usually feel hot. My previous job was employment and placement specialist I held this position for 25 years, I love talking about magic and ghost hunting,. Huge fan of Alex Choi I practice surfing and collect games.
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