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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 for your comment Tillie Sitzes, have a nice day.
- Verda Gebbie, Staff Member
hey folks welcome to another episode of Hawthorne law TV my name is Jim Hart and the founder and chief attorney here at Hawthorne law and today I want to talk to you about trademarks trademarks it's a really important but often overlooked area of the law for online businesses and is it's really important you understand what a trademark is what the benefits are creating a strong trademark and how to make sure you can have a strong trademark and how to register that trademark properly when the time comes so let's start with the basics here's a quick definition of a trademark a trademark consists of a word or words phrase logo graphic design or expression that functions to identify the source of a product or service and to distinguish it from its competitors so when you have properly filed and registered your trademark you're entitled to trademark protection from the federal government and that means that you can keep others from using your mark and you could be entitled to damages if somebody does infringe on your intellectual property by using your mark in violation of your trademark the main benefits of creating a strong trademark are number one it's going to be much easier to register than a week trademark and it's also going to be easier to police and protect than a week trademark so you're really going to be able to effectively distinguish your brand from those of your competitors on the other hand a week trademark or a week trademark that you intend to register is going to end up costing you a lot of time and money and then it could be difficult to register with the united states patent and trademark office and even if you are able to register it if its weak the reasons its weekly subjected to other brands coming in and fringing in your mark sometimes you know unintentionally but they're doing it anyway so question I often get is how can I make sure that I have a strong trademark well fortunately first lawyers out there the federal courts have given us some guidance on what makes a good trade mark and a bad trade mark and so without going into all the loop legal nuances and terminology here basics the federal courts are referred to what's called a spectrum of distinctiveness to classify trademark so when they're looking at a new trademark registration when the examining attorney is looking at that mark they can classify it as one of five different types of marks and these are from from strongest to weakest a fanciful Mart an arbitrary mark a subjective mark excuse me a suggestive mark a descriptive mark in a generic term so the strongest trademark that you can file is a fanciful Monica fans hallmark is automatically going to get registered by the united states patent and trademark office because and this is assuming of course that nobody else has claimed it these are marks that have no inherent meaning in them themselves they're basically adopted for the first time by you and a good a good example of a fanciful mark will be Google obviously there was no Google before Google form to google and skype is another one that is a fanciful mark there's no such thing as skyping and tell skype pointing to that term the next best option if you can't come up with a fanciful mark for your business or don't want to is an arbitrary mark an arbitrary mark is basically a common ordinary word and every day word which is also found in the dictionary long before it was registered but they're used in a way that is completely unrelated and different than their dictionary meaning the most commonly cited example this is Apple obviously Apple is a computer company it's not a company that sells apples and it's a great name for a computer company but what makes that interesting is that it would be a terrible name for a company that did sell apples so arbitrary marks are also going to be likely to be registered without too much difficulty with the trademark process the third type of mark is a suggestive mark these are terms that tend to suggest the nature quality or characteristic of the goods and services that it represents examples of suggestive trademarks include name brand names like 7-eleven or car names like Jaguar or Mustang the next classification of marks is going to be descriptive marks now these are now now we're starting to talk about marks that are going to be more difficult to register and descriptive marks generally are not going to be registered because they have a dictionary meaning that is directly related to the products or services that are in commerce so these terms are typically not able to be registered unless they have a distinctive character that has been established through extensive use of that product or service in the marketplace in other words you should avoid descriptive marks when naming your business the last classification is a generic term generic terms are never going to be registered there exactly what you would think they are it's just basically the common name of a product and it's incapable of distinguishing your product for something else in the marketplace so that's why they're not going to be registered so obviously as I mentioned here the strongest trademarks and the ones that are most likely to be registered are going to be the fanciful and the arbitrary trademarks suggested marks are also strong but they're going to be less strong than the fanciful or arbitrary marks but you should be aware that even if you do file a trademark that is fanciful or arbitrary in nature if it's already been picked by somebody else in the marketplace your application is still going to be denied so you may be wondering all this information how do you pick a brand name for your business and how do you do it the right way well the bottom line is you shouldn't pick the first name that comes to mind you want to spend some time brainstorming different ideas thinking of different combinations of words thinking of other objects that might somehow relate to your brand or be characteristics of your brand I like to think about constellations and stars animals mountains plant names etc all these things are good examples of things that might be relevant or they might possess qualities that are are good for your brand so when we when I named Hawthorne law I named it after the Hawthorn tree because hawthorn tree can withstand the elements over many years and can come with the good in the bad and it's it's it's a very strong tree and that's that's how I think of Hawthorne Hawthorne ought to be i think it's a it's a law firm that's going to be with you through the thick and thin and we're going to help to protect you regardless of whether or not you're going through good times or bad times and so I think you really need to put a lot of thought into this and come on for the name that is really creative unique and original to your brand that's the best way to have a good trademark and speeding through and giving yourself the best shot or speeding through the registration process so once again I want to thank you for watching today if you have any questions about what type of business entity you should choose your law firm how to register your trademar
Thanks adromeremJ your participation is very much appreciated
- Verda Gebbie
About the author
I've studied philosophy of space and time at Wilson College in Chambersburg and I am an expert in sociology of peace, war, and social conflict. I usually feel melancholy. My previous job was medical records administrator I held this position for 2 years, I love talking about badminton and axe throwing. Huge fan of Scott Yancey I practice soccer and collect petroliana.
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