Trademark law basics

Trademark law started out as a way to protect consumers against counterfeit goods back in the 13th century. Then, in the 1870?s the United States and England set up Trademark Departments granting trademark registrations. So, now to get the rights and protection of the trademark laws you have to register your trademark. You can do this in your state, or federally. Federal trademark registration offers the most protection.

The law states that no two trademarks can be confusingly similar. This means that if consumers are confused about the origin of the product, or in other words, who made it, then there are grounds for trademark infringement. Consumer confusion requires similar trademark and similar product. So, for example, it is not trademark infringement for a dental office to call itself Macintosh Dental, even though Macintosh Computers is trademarked. It is possible for them to coexist because consumers are not going to be confused. These two brands represent significantly different products, and so they are not hurting one another by having similar names, or symbols.

In order for something to be a trademark it has to be unique in some way. There are a lot of ways this can happen. With trademark law it is important to understand there is a whole spectrum of types of trademarks. For example, there are fanciful trademarks, which are defined as ?coined? terms that had no meaning before being trademarks. So, this would be big brands like Chevron, Kodak, Starbucks. Then, there are arbitrary trademarks, which are defined as common words used in a unique way so that the word has no relationship to the product. So, for example, Amazon is an online bookstore that has nothing to do with the Amazon. Apple is a computer, not a fruit, etc. Then you have a group called suggestive trademarks, which are trademarks that allude to a quality of the product, such as Mustang for cars, or Playboy, or 7-11 (when it first opened it was open from 7am to 11 pm). Then you get a group of trademarks called descriptive trademarks, such as Vision Center for an eye and vision store, or a domain name that explains what it does, such as Rachaelswriting.com which alludes that Rachael will be writing. The kind of trademark you have will affect the laws, and infringement decisions.

Generic trademarks are harder to get, and are when the term describes a whole class of products.

Once a trademark is registered it is given a whole bunch of rights, so the registration process is not always easy.

Consider the following:

Registration grants exclusive rights to use that trademark for that product in America. Because trademark law grants such strong rights, there is a high standard to achieve registration.
Only fanciful, arbitrary, and suggestive trademarks are considered inherently distinctive and initially entitled to registration.
It could take years before you can officially register a descriptive trademark. Descriptive trademarks can achieve registration if they achieve ?secondary meaning.? ?Secondary meaning? occurs when customers come to recognize the particular term as having a second meaning, signifying a particular brand. Such as Frosted Mini Wheats, are not just cereal, but a brand of Kellogg cereal.

Trademark law basics related links

Trademark Basics
This site has a comprehensive overview of trademark law. It has it broken down into simple segments, with links so that you can quickly and easily get to the areas of trademark law you are interested in learning about.
Trademark Law Basics
This site gives a good look at trademark law basics. It provides a break down of the various areas of trademark law you would want to know about such as trademark infringement.
?Trademark Law, an Overview?
This is an article called ?Trademark Law, an overview? It is a great source for learning the basics of trademark law. It has the most recent changes made to the law, and more.
US patent and trademark office
This is a site that is the official US patent and trademark office, and it discusses the basics that the law entails. It explains fees, using an attorney, trademark notices, and other things related to trademark laws

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Do You Need A Patent, Copyright or Trademark
How to preserve your trademark

This means that if you want to have the protection of trademark law, it is best to go for a suggestive, fanciful, or arbitrary trademark.

Once you have something you want trademarked, you need to get that trademark cleared. To do this, you have to be first, and you can?t be too similar to someone else?s trademark. So, if you have an idea, search relevant databases to see if a similar trademark exists, then register for it, so that you can get it, even if you do not plan to launch the product for six months.

For you to be protected by trademark laws, proper trademark usage must be enforced.

The following is a brief look at proper trademark use:

Always use Trademark as an adjective modifying a noun. Ex: Kleenex facial tissues.
Never use a trademark as a verb or a noun. Ex: You are not XEROXING a copy but photocopying on a XEROX copier, You are not asking to be handed a Kleenex, but a facial tissue of the Kleenex brand
Be aware of how you use your trademark so that ?Genercide? does not happen. For example, genercide happened to THERMOS, CELLOPHANE, and TRAMPOLINE. These are no longer trademarks, but nouns.
Always use the right trademark symbol. TM or SM can be used at any time, to denote that what you are using is a protectable trademark or service mark. However, you may want to check to make sure you are not infringing before you use this mark. r can only be used once the mark has achieved a United States trademark registration.

The basics of trademark law are defined by what a trademark is and why you would want one, so let?s take a closer look at this.

What is a trademark?

A trademark is a word, symbol, or phrase, used to identify a particular manufacturer or seller?s products and distinguish them from the products of another. As stated earlier, a trademark does not always have to be a brand name, logo, or a slogan, but in some cases includes aspects of packaging, colors, etc. These features fall generally under the term ?trade dress,? but you need to make sure if you want these covered by trademark law that they are specifically stated on your application.

These features will not be protected if they confer any sort of functional or competitive advantage. So, for example, the packaging of the Coca-Cola bottle might be trademarked, but if it is determined that the shape offers a functional advantage, such as it is easier to stack, or grip, then the trademark privileges would be lost.

Links: Trademark law basics

Trademarks & US Trademark Law | IPWatchdog.com
A trademark (which relates to goods) and a service mark (which relates to services) can be any word, name, symbol, or device, or any combination, used, or intended to be used, in commerce.
4LawSchool Law School Outlines Bank
This site explains what trademark law is, and what it takes to be a trademark lawyer. It explains what the professional responsibilities are, and why trademark layers are important.
An outline of US copyright patent and trademark law
This is an outline of the US patent and trademark law. It explains what is included in the law, and how to get trademarked, and how to protect your trademark if you think it is being infringed upon.

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Why are trademarks protected?

Trademarks make it easier for consumers to know the source of the item. This means if someone uses a trademark that is not theirs, they are getting an unfair advantage in the marketplace. It also means they are benefiting from someone else?s work, time, and money. This is why it is illegal.

What sources of law govern trademarks?

Trademarks are governed by both state and federal law. The main federal statute is the Lanham Act, which was enacted in 1946 and was most recently amended in 1996.

How do you get trademark rights?

To get trademark rights you have to be the first one to use the mark, and the first one to register it with the USPTO.

What does it mean legally to register a trademark?

Although registration with the PTO is not required for a trademark to be protected, registration does confer a number of benefits to the registering party, most of which are the legal protections we have mentioned previously. Federally registering a trademark means you can use the mark nationwide. It also means that if someone infringes on it you can bring an infringement suit in federal court, and potentially recover treble damages, attorneys fees, and other remedies.

Can trademark rights be lost?

The rights to a trademark can be lost through abandonment, improper licensing or assignment, or genericity: Abandonment means you stop using the trademark and do not intend to use it in the future. Improper licensing or assignment is when a trademark is licensed (like if you franchise) without adequate quality control or supervision by the trademark owner. Genericity is when a trademark was originally distinctive can become generic over time, thereby losing its trademark protection.

Now you know the trademark law basics. In summary, the law states if you have a federally registered trademark, you can use it wherever you want. If someone infringes on your trademark, by being confusingly similar, you can take the to court for damages.

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Source: http://themodernaccountant.com/2013/01/26/trademark-law-basics/

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