What is the federal trademark act [Expert Answers]

Last updated : Sept 17, 2022

What law protect trademarks in the US?

The main federal statute is the Lanham Act, which was enacted in 1946 and most recently amended in 1996. 15 U.S.C. §§ 1051, et seq.. Today, federal law provides the main, and by and large the most extensive, source of trademark protection, although state common law actions are still available.

What are the 8 elements used to determine infringement of a trademark?

In determining the likelihood of confusion in trademark infringement actions the courts look to these eight factors: the similarity of the conflicting designations; the relatedness or proximity of the two companies' products or services; strength of the plaintiff's mark; marketing channels used; the degree of care ...

What is a trademark used for?

A trademark typically protects brand names and logos used on goods and services. A copyright protects an original artistic or literary work. A patent protects an invention.

What does a trademark protect?

A trademark is a sign capable of distinguishing the goods or services of one enterprise from those of other enterprises. Trademarks are protected by intellectual property rights.

What are the 4 types of trademarks?

• Generic. A generic term is a common description that does not receive trademark protection.
• Descriptive.
• Suggestive.
• Arbitrary or Fanciful.

Which of the following is not protected by trademark law?

Generic terms are not protected by trademark because they refer to a general class of products rather than indicating a unique source.

What violates a trademark?

Trademark infringement is the unauthorized use of a trademark or service mark on or in connection with goods and/or services in a manner that is likely to cause confusion, deception, or mistake about the source of the goods and/or services.

How do you prove a trademark is violated?

To establish infringement of a registered trademark, the plaintiff must prove a likelihood of confusion, which generally means that the average consumer of the goods or services at issue would conclude that the goods and services of the defendant originated from or were authorised by the trademark owner.

How do you know if you are infringing on a trademark?

Breaking Down The Elements. To prevail on a claim of trademark infringement, a plaintiff must establish that it has a valid mark entitled to protection; and that the defendant used the same or a similar mark in commerce in connection with the sale or advertising of goods or services without the plaintiff's consent.

Who needs a trademark?

Business owners that have a distinctive business name, motto, logo, slogan, symbol to represent their product, service or business may want to consider registering it as a trademark from the U.S. Patent and Trademark Office, or USPTO, a federal agency, and/or a similar state agency.

What are examples of trademark?

• Under Armour®
• Twitter®
• It's finger lickin' good! ®
• Just do it®
• America runs on Dunkin'®

How long does a trademark last?

A federal trademark lasts 10 years from the date of registration, with 10-year renewal terms. Between the fifth and sixth year after the registration date, the registrant must file an affidavit to state that the mark is still in use.

What is the most common reason that a trademark might be rejected?

Likelihood of confusion is the most common reason an application will be rejected by the USPTO. Essentially, if there is a high probability that the general public will confuse your trademark with someone else's (already existing) trademark, your registration will not be granted. The two marks need not be identical.

Why should you trademark your business?

Trademarking is an important step for protecting your brand identity. It will stop competitors from poaching your customers by imitating your brand. It can also offer you some protection if those copycats do something reputation-damaging.

What is the difference between a trademark and copyright?

Copyright protects original work, whereas a trademark protects items that distinguish or identify a particular business from another. Copyright is generated automatically upon the creation of original work, whereas a trademark is established through common use of a mark in the course of business.

What words Cannot be trademarked?

• Proper names or likenesses without consent from the person.
• Generic terms, phrases, or the like.
• Government symbols or insignia.
• Vulgar or disparaging words or phrases.
• The likeness of a U.S. President, former or current.
• Immoral, deceptive, or scandalous words or symbols.
• Sounds or short motifs.

What is the difference between a state trademark and federal trademark?

State trademarks protect a mark only in the registered state(s), meanwhile a federal trademark protects the mark(s) nationwide and potentially can be used to obtain international trademarks through the WIPO World Intellectual Property Organization.

Which types of trademarks Cannot be used?

Trademarks which contain or comprise matter likely to hurt the religious susceptibilities of any class or sections of citizens of India. Trademarks which contain or comprise scandalous or obscene matter. If the usage of the trademark is prohibited under the Emblems and Names (Prevention of Improper Use) Act, 1950.

Do I need a trademark or copyright?

Copyrights primarily protect the rights of people who create literary, dramatic, musical, artistic, and certain other intellectual works (like history tests, and software code). Trademarks protect the use of a company's name and its product names, brand identity (like logos) and slogans.

What is Section 11 of trademark Act?

(11) Where a trade mark has been registered in good faith disclosing the material informations to the Registrar or where right to a trade mark has been acquired through use in good faith before the commencement of this Act, then, nothing in this Act shall prejudice the validity of the registration of that trade mark or ...

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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 Warren Chesson, have a nice day.
- Lisha Marez, Staff Member

hello welcome back to my channel i'm boss attorney free and this is the place for entrepreneurs and content creators to come to boss up their business the legal and legit way if you are new to my channel and you are not yet subscribed to my channel and you're interested in learning how to make sure your business is legal and legit make sure you subscribe and at any time during this video something resonates with you make sure you hit the like button below today we're going to jump right into it and we're talking about trademarks that is my favorite topic to talk about on this channel but today we're going to be talking about it in a little bit of a different frame we're going to be discussing the difference between state trademarks and federal trademarks so today we are going to be talking about the difference between a state trademark and a federal trademark why because i have been getting this question a lot on my instagram asking what's the difference between a state trademark what's the difference between a federal trademark and do i need both today we're going to cover that if you have been following my channel for some time now we know that a trademark is anything that you use to distinguish your brand from the brand of another so that can be your logo your brand name your tagline or pretty much anything else that you may use to kind of show that your brand is different it can even be a color okay so estate trademark is basically a trademark so it protects your brand name your logo um your tagline state trademarks are virtually the same as federal trademarks it just provides a different protection because you are actually filing it with your state rather than the federal government remember when we're talking state trademarks and federal trademarks we're talking about who has jurisdiction over that trademark so if you're only following in california your trademark is only protected in california if you're filing a federal trademark then you're hoping for the federal government to protect your trademark throughout the united states no matter what state you are in let's start off with state trademarks it is still going to protect your brand but the protection is limited it's going to be limited to the state that you are in so a state trademark provides you with regional protection with this regional protection it is limited to the state that you are in so this is usually good if you're a local business and you don't plan on expanding outside of your state if you file a trademark within your state then you will be protected within that state and anyone else in that state will use california as an example that tries to steal your name or put a name super similar to yours and logo super similar to yours you can stop them from using that trademark as long as you are in the state you will have a hard time stopping someone in the next state or two states over from using that trademark you will have what's called common law rights against that user now that we know that your trademark is protected within your state and it may be limited you're not going to have the same protection in arizona if you foul in california with a state trademark let's move on to cost filing a state trademark is most likely going to be cheaper than filing a federal trademark just because those government fees tend to be lower than the actual federal government fees i'm going to use california as an example the price for each classification for your trademark within california is 70 as opposed to a federal trademark which the minimum price is going to be 250 remember that this price is going to vary by what state you're in so it's very important that you search your state's secretary of state website to check out what fees apply to your state if you're thinking about getting the state trademark now let's move on to talk about the government symbol that you can use to protect your state trademark how do you let people know that you actually have your trademark registered with your state you would want to put the small tm next to your trademark or next to your name your logo or whatever you're using as your trademark to let people know that you actually have a registered trademark with the state yes it is true that people that do not have registered trademarks with the state can also use the small tm sign so it may not be as beneficial as having a federally registered trademark that brings me to my next point of that you're not going to be provided with the same protection that you may be provided with under the federal government trademarks were originally formed under the federal government to provide protection to businesses so people cannot steal other people's brand's names their logos and things like that but with a state trademark you are going to be operating under state law so your state's law may not provide you with the same legal remedies as having a federal trademark for instance you may not be able to receive as much money when you sue you may have to show more proof that you were the user first or that your trademark is valid and things like that so just make sure you understand that with a state trademark you are not going to have the same type of remedies as having a federal trademark and it's a little harder to show people outside of your business that you actually have a registered trademark because you use the same trademark symbol which is the small tm as someone who does not have a trademark registered at all so someone that is asserting common law rights with their trademark let's move on to federal trademarks the federal trademark is the big kahuna that is the trademark that you want if you have the means to get it your federal trademark protects you nationwide so this is going to protect you throughout the united states so no matter whether you're in california and someone else is in arizona or maybe they're in illinois you will have the same protection to defend your trademark to protect another business from using the same trademark as you no matter if they are in a different state as opposed to a state trademark where you're limited to only protecting yourself within the state that you're in with that again we have to discuss jurisdiction so just because you have a federal trademark within the united states does not mean that you can stop someone in australia from using your trademark or in china from using your trademark you will need to file a trademark in each country that you intend on asserting your trademark rights in and remember that each country is going to have different rules so it is best to consult with an attorney in that jurisdiction or in that country so let's move on to the cost of a federal trademark i mentioned it a little earlier in this video to file a trademark with the federal government the minimum cost is going to be 250 and that is just the cost for the actual government fee so if you're looking to have someone file it for you like a trademark attorney or a document preparation service such as legalzoom then expect for that cost to increase either by an attorney fee or by a processing fee for that document pr

Thanks marcyrose0 your participation is very much appreciated
- Lisha Marez

About the author

Lisha Marez

I've studied newspaper at Snow College in Ephraim and I am an expert in environmental ethics. I usually feel weird. My previous job was automotive body repairer I held this position for 17 years, I love talking about triathlon and ant-keeping. Huge fan of Shakira I practice basketball and collect handbags.