Trademarks

9 Key excerpts on "Trademarks"

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  Product Management

  • (Author)
  • 2014(Publication Date)
  • Orange Apple

    (Publisher)

  ____________________ WORLD TECHNOLOGIES ____________________ Chapter- 8 Trademark A trademark or trade mark or trade-mark is a distinctive sign or indicator used by an individual, business organization, or other legal entity to identify that the products or services to consumers with which the trademark appears originate from a unique source, and to distinguish its products or services from those of other entities. A trademark is designated by the following symbols: • ™ (for an unregistered trade mark, that is, a mark used to promote or brand goods) • ℠ (for an unregistered service mark, that is, a mark used to promote or brand services) • ® (for a registered trademark) A trademark is typically a name, word, phrase, logo, symbol, design, image, or a combination of these elements. There is also a range of non-conventional Trademarks comprising marks which do not fall into these standard categories, such as those based on color, smell, or sound. The owner of a registered trademark may commence legal proceedings for trademark infringement to prevent unauthorized use of that trademark. However, registration is not required. The owner of a common law trademark may also file suit, but an unregistered mark may be protectable only within the geographical area within which it has been used or in geographical areas into which it may be reasonably expected to expand. The term trademark is also used informally to refer to any distinguishing attribute by which an individual is readily identified, such as the well known characteristics of ____________________ WORLD TECHNOLOGIES ____________________ celebrities. When a trademark is used in relation to services rather than products, it may sometimes be called a service mark, particularly in the United States.

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  The Law (in Plain English) for Galleries

  A Guide for Selling Arts and Crafts

  • Leonard D. DuBoff, Christopher Perea(Authors)
  • 2020(Publication Date)
  • Allworth

    (Publisher)

  Despite this shift, the essential purpose of Trademarks and trademark laws has changed little since the days of the craft guilds. Trademarks still function primarily as a means of identifying the source of a particular product. Trademark laws are also designed to enable the trademark proprietor to develop goodwill for the product as well as to prevent another party from exploiting that goodwill—regardless of whether that exploitation is intentional or innocent.

  DEFINITION A simplification of the federal definition of a trademark is—

  any word, name, symbol, device, or any combination thereof, adopted and used by a person, or which a person has a bona fide intention to use in commerce and subsequently does use, which identifies and distinguishes his or her goods or services, including a unique product, from those manufactured or sold by others, and indicates the source of those goods or services, even if that source is unknown.

  A trademark owner may be a licensee, broker, or distributor. The term, use in commerce, means the bona fide use of a mark in the ordinary course of trade—not a use made merely to reserve a right in the mark. Reservation of a mark prior to its use can be achieved by filing an intent-to-use application with the Patent and Trademark Office (PTO).

  The key concept of trademark law is that the trademark must be distinguishable. In order to secure trademark protection, one must develop a distinctive mark. The most distinctive Trademarks are those that are purely arbitrary or fanciful (i.e., those that have no meaning or connotation other than identifying the source of a particular product). For example, the trademark “Kroma” to identify dichroic glass jewelry is purely fanciful. Less distinctive are Trademarks that have another meaning, such as the trademark Shell to identify gasoline. Although such Trademarks as Shell are not purely arbitrary, they are nevertheless afforded substantial protection since the other meaning bears no resemblance to the product identified.

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  Science and Technology Resources

  A Guide for Information Professionals and Researchers

  • James E. Bobick, G. Lynn Berard(Authors)
  • 2011(Publication Date)
  • Libraries Unlimited

    (Publisher)

  A trademark is a word, phrase, symbol, design, or a combination of these that identifies and distinguishes the source of the goods or services of one party from those of others. Trademarks are generally displayed on a product or its pack- aging or displayed on physical storefront property or delivery vehicles. Trademark protection is usually sought by those wishing to sell products and to create a signa- ture brand that signifies to the public that their product is unique and recognizable and is the source for the product. The owner of a trademark has the right to prevent others from using a similar or matching mark on their product(s) or service(s). To be able to display and use the ® symbol to designate a registered trademark, one must have applied for and been granted federal registration. As long as the mark is used in commerce it retains its registration protection. See Figure 9.1 for an example of a word mark. A service mark is the same as a trademark except that it identifies and distin- guishes the source of a service rather than a product. Service marks are used to ad- vertise and brand a service and often appear on printed brochures, sides of service vehicles, on Web sites for the service, and on correspondence. A service mark can be Why Search Patents? 101 Figure 9.1. An example of a mark image from the USPTO database. Word Mark: PENGUIN’S PARADISE DESSERT BAR. Accessed September 2009. a very powerful marketing tool. Do you recognize the service mark in Figure 9.2? It belongs to the Mayflower Transit LLC, the moving company, and has been in service since 1948. The company continues to renew it mark registration and therefore it is currently categorized as a „live‰ mark. Copyright This form of protection is provided to authors of „original works,‰ which include lit- erary, dramatic, musical, and artistic works, and covers the „expression of ideas‰ not the idea itself. It provides an author with certain exclusive rights for a limited time.

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  The Law (in Plain English) for Nonprofit Organizations

  • Leonard D. DuBoff, Amanda Bryan(Authors)
  • 2019(Publication Date)
  • Allworth

    (Publisher)

  Trademarks still function primarily as a means of identifying the source of a particular product. Trademark laws are also designed to enable the trademark proprietor to develop goodwill for the product as well as to prevent another party from exploiting that goodwill—regardless of whether that exploitation is intentional or innocent. Nonprofit organization staff members may be able to search the US Patent and Trademark Office website (www.uspto.gov) in order to determine whether the nonprofit’s Trademarks are very similar to registered Trademarks or marks that are pending registration. Determining the availability of a registration may be quite technical and it is important to work with experienced trademark practitioners in order to avoid significant problems. Unlike copyright registration, trademark registration generally requires experienced legal assistance. There are several websites that claim to be helpful with Trademarks and offer registration assistance for a flat fee. Regrettably, the vast majority of these sites charge more than trademark lawyers, and they often do not provide the promised assistance necessary to successfully register the mark. In fact, many organizations have been forced to pay experienced intellectual property lawyers to complete the registration process unsuccessfully started by one of these online sites. DEFINITION A simplification of the federal definition of a trademark is: any word, name, symbol, device, or any combination thereof, adopted and used by a person, or which a person has a bona fide intention to use in commerce and subsequently does use, which identifies and distinguishes his or her goods or services, including a unique product, from those manufactured or sold by others, and indicates the source of those goods or services, even if that source is unknown. A trademark owner may be a licensee, broker, or distributor

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  Content Rights for Creative Professionals

  Copyrights & Trademarks in a Digital Age

  • Arnold Lutzker(Author)
  • 2013(Publication Date)
  • Routledge

    (Publisher)

  Sometimes, marketplace competitors, searching for an advantage, play off the reputation of others. Whether by comparative advertising (Pepsi tastes better than Coke) or tricks to simulate logos, trademark issues dominate the efforts of many who seek to create a specific niche. Being savvy about Trademarks smoothes the operation of any business enterprise.

  The Internet and digital communications opened a whole new area for trademark exploitation. Domain names, metatags, and keywords are often shorthand for someone’s trademark. We are constantly being bombarded with new uses of old marks. Even the right to use one’s own name is being regulated in the interest of trademark protection.

  Before delving into the key issues of trademark law, we look at the principal concepts that dominate this discipline.

  Trademarks, Service Marks, Trade Names, Trade Dress, and Product Design

  While we shall use the word trademark to cover all the types of elements, there are actually five terms that need to be distinguished. A trademark is a word or phrase physically stamped on a good or a label attached to a good. It is a unique identifier as to the source of the product. The product itself is tangible and can be held, lifted, eaten, or worn. Sometimes, the product is too big to fit into your pocket, like an automobile or airplane, but the word or symbol by which it is distinguished from competing articles is clear. Therefore, whenever the product is tangible, the relevant legal term is trademark.

  A service mark is the word or phrase associated with the provision of services. Like a trademark, it is a unique source identifier. Since services are not tangible, you cannot touch them, eat them or wear them; yet, they are crucial to commerce and living. So, even though you cannot touch a communications service, you know the firms that deliver those services by these symbols: Verizon, AT&T, NBC, AOL-Time Warner, and KABC-AM and -FM. All these are service marks for the entities that provide communication services. Of course, the same symbol could serve as a trademark and a service mark: In the phrase AT&T long distance services, AT&T is a service mark, but when you reach for an AT&T telephone, the letters AT&T

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  Property Law Essentials

  • Duncan Spiers(Author)
  • 2014(Publication Date)
  • EUP

    (Publisher)

  For example, where a piece of electronic equipment is made to have the same dimensions, colour and visible design features as other associated products. Again, such features are not the product of the designer’s creative thinking but are features that the designer must incorporate. These aspects of the design cannot be protected. TRADE MARKS One of the difficulties with trade marks is how they are to be defined. In the Trade Marks Act 1994, s 1 defines a trade mark as “a symbol or sign placed on, or used in relation to, one trader’s goods or services to distinguish them from the goods or services supplied by other traders”. The statute then goes on to say that the sign must be capable of being represented graphically . This is presumably because the trade mark rights 40 PROPERTY LAW generally arise by way of registration. The trade mark application must adequately specify the distinctive mark which is to be used. Note again that trade marks may be registered or unregistered (arising by exclusive usage in the relevant sector of trade). Unregistered marks are an automatic right arising from trade usage by the owner. Trade mark protections historically arose in the mid-19th century when it became clear that maker’s marks applied to goods could become distinctive and have an intrinsic value. It was clear that there was a need of some form of legal recognition and protection. Note also that, even if unregistered, a trade mark can be protected under the common law of passing off. This means that if somebody attempts to pass themselves off as being another trader by the use of that other trader’s mark, then the infringer’s activities can be stopped. “Passing off” means that the infringer is effectively taking advantage of the goodwill owned by the principal business.

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  The Law of Reputation and Brands in the Asia Pacific

  • Andrew T. Kenyon, Megan Richardson, Wee Loon Ng-Loy(Authors)
  • 2012(Publication Date)
  • Cambridge University Press

    (Publisher)

  Article 15(1) of TRIPS requires con- tracting parties to ensure that: Any sign, or any combination of signs, capable of distinguishing the goods or services of one undertaking from those of other undertakings, shall be capable of constituting a trademark. 30 A ‘sign’ is also generally broadly defined. For example, ‘sign’ is defined in s. 6 of the Australian Trade Marks Act 1995 (Cth) (TMA) as follows: sign includes the following or any combination of the following, namely, any letter, word, name, signature, numeral, device, brand, heading, label, ticket, aspect of packaging, shape, colour, sound or scent. The reference to brand in this definition is generally regarded as referring to an older use of the word being a mark made by burning. Thus, it can be seen that many components of a brand may be registrable as trade marks, although some components may still not qualify for registration. Many countries including in the Asia Pacific region also protect the goodwill of a business from injury caused by an unauthorised person using the well-established brand of the business in a manner which deceives consumers into believing the unauthorised user’s goods or ser- vices are the goods or services of the business with which they are familiar or are associated in some way with that familiar business. Such protection is often achieved by bringing what is called a passing off action against the unauthorised user, an action created by English judges to protect the goodwill of businesses and which many countries in the Asia Pacific 28 See further Chapter 2, in this volume. See also Tom Blackett, Trademarks (Interbrand, Macmillan Business, London, 1998). 29 Opened for signature 15 April 1994, 1869 UNTS 299 (entered into force 1 January 1996). 30 This distinctiveness requirement is a corollary of the badge of origin function generally required of a registered trade mark as discussed below.

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  Trademark Valuation

  A Tool for Brand Management

  • Gordon V. Smith, Susan M. Richey(Authors)
  • 2013(Publication Date)
  • Wiley

    (Publisher)

  Sturm und Drang of business and competition, like an actor may appear on the stage now as a cowboy and then as a butler. The economic life of a trademark can even be independent of a particular product if it is sufficiently strong, versatile, and if the transition is carefully managed.

  Trademarks and Goodwill

  A trademark, or brand, identifies a product or service as coming from a particular source (usually a commercial enterprise). Siegrun Kane describes Trademarks as “symbols of goodwill. The value of this goodwill increases with length of use, advertising, and sales. Trademarks used for a long time on successful, highly advertised products have developed tremendous goodwill”34 .

  In a 1942 decision, the Supreme Court described this trademark/goodwill relationship as follows:

  The protection of Trademarks is the law’s recognition of the psychological function of symbols. If it is true that we live by symbols, it is no less true that we purchase goods by them. A trademark is a merchandising shortcut which induces a purchaser to select what he wants, or what he has been led to believe he wants. The owner of a mark exploits this human propensity by making every effort to impregnate the atmosphere of the market with the drawing power of a congenial symbol. Whatever the means employed, the aim is the same—to convey through the mark, in the minds of potential customers, the desirability of the commodity upon which it appears. Once this is attained, the trademark owner has something of value. If another poaches upon the commercial magnetism of the symbol he has created, the owner can obtain legal redress.35

  This linkage of a trademark and “goodwill” is both understandable and the source of confusion. At one time, a business enterprise was thought to consist of only tangible assets and goodwill, but references to “blue sky” persist when valuing the fixtures and inventory of a retail business. Careful analysis reveals, however, several components encompassed within the goodwill “catchall” That analysis enables the valuation expert to understand the difference between computer software, an assembled workforce, or a favorable contract. It is much less clear that there is a difference between goodwill and a trademark, especially when goodwill is described as patronage, or the proclivity of customers to return to a business and recommend it to others, or as above—“commercial magnetism.”

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  Technology Entrepreneurship

  Taking Innovation to the Marketplace

  • Thomas N. Duening, Robert A. Hisrich, Michael A. Lechter(Authors)
  • 2020(Publication Date)
  • Academic Press

    (Publisher)

  service mark is used to identify the source or origin of a product or service, distinguishing goods or services of one company from those of another. Customers connect the goodwill and reputation of your company to its products through its Trademarks. Under the law, a competitor is prevented from capitalizing on another venture’s reputation and goodwill by passing off possibly inferior goods as those of the venture or creating the impression that it is sponsored by or affiliated with the venture. In this way, proper use of a trademark protects the sales value of the venture’s reputation, and that of the product, as well as its investments in advertising and other promotional activities used to develop goodwill. However, trademark protection does not prevent the competition from copying or reverse engineering the technical aspects of a product.

  Acquiring Trademark Rights

  Three different trademark law regimes are employed around the world: use-based common-law, pure registration, and combination use-based registration.

  Use-based Common-Law and Combination Use-Based Registration Systems

  In common law jurisdictions (e.g., the United States, Canada, and the United Kingdom) trademark rights are acquired through use of the mark. The first to use a given mark in connection with particular goods or services in a given geographical area obtains the exclusive rights in the mark for use with those particular goods or services in that particular geographical area. However, if someone else adopts the mark somewhere outside of that geographical area without knowledge of the prior use of the mark, that person would acquire valid common law rights to the mark in the remote area. This is where combination use-based registration comes into play: Obtaining a trademark registration from the appropriate governmental agency provides constructive knowledge of the mark and prevents subsequent remote users from obtaining rights.

  Use of a mark sufficient to support a registration requires physical association of the mark on or in connection with the product or service. With a trademark, it is sufficient to apply the mark to labels or tags affixed to the product or to the containers for the product, point of sale displays, or the like. Trademark usage cannot be established just through use of the mark in advertising or product brochures. However, if it is not practicable to place the mark on the product, labels or tags, then the mark may be placed on documents associated with the goods or their sale.81 Depicting a trademark on a website is insufficient trademark use if the goods with which the mark is used cannot be ordered through the website.82

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