A trademark is a word, symbol, or name that identifies the goods or services of one party and distinguishes them from those of others. In some countries, such marks are called “trademarks” or “service marks.”
Trademark rights can arise either through use in the marketplace or by registration with the government. This article will cover the basic principles of Trademark law, including how marks are protected and what kinds of remedies exist for infringement.
Trademark Registration
A trademark is a type of intellectual property that protects a company’s reputation with consumers. It’s a sign that your business has established itself in the ma 이혼전문변호사 rket, and it also gives you claim to ownership should someone attempt to challenge your mark.
Trademark law stipulates that you can only use a mark for the goods or services for which it’s registered. The mark must be unique and distinguishable from similar marks used by other companies in the same line of work. If a company attempts to register a mark that is too similar to an existing one, it will be refused registration and receive a cease and desist letter from the registered owner.
The trademark application process can take anywhere from a few months to a year. There is a filing fee of $250-$350 for each class that the trademark will cover.
If the examining attorney is satisfied that your mark meets the substantive requirements for registration and doesn’t conflict with any pre-existing ones, it will be allowed to move on to publication in the Trademark Official Gazette. Then, there will be a 30-day period during which anyone can appeal the decision to the Trademark Trial and Appeal Board. You can file a name and logo together in the same application, but that is not always advised because the mark will be treated as a single unit r 이혼전문변호사 ather than two separate elements.
Trademark Protection
The trademark law protects words and designs that distinguish the goods of a particular business from those of others. A mark may include a word, symbol, picture, sound, or combination of these elements. It may even be a color or a scent. A trademark can distinguish goods or services within the marketplace and help consumers find what they want. Trademarks are typically used for products and services that involve the use of a computer, but they can also be used for such diverse goods as automobiles or restaurants. A service mark (denoted by sm) identifies and distinguishes services rather than products, but it offers substantially the same protection as a trademark.
A fanciful or arbitrary mark is inherently distinctive and receives the greatest trademark protection. A descriptive mark, on the other hand, can only be protected if it has acquired secondary meaning in the minds of the public. A trademark can lose its rights through abandonment, improper licensing or assignment, or genericity. Genericity occurs when a trademark becomes associated in the mind of a significant portion of the public with a general category of goods or services and not the specific source or manufacturer. For example, the terms escalator and thermos were once trademarked for particular manufacturers, but they have become generic and no longer enjoy trademark protection.
Trademark Infringement
A registered trademark confers a bundle of exclusive rights on the owner and trademark law prohibits any unauthorized use of a mark for goods or services that are confusingly similar to the protected mark. A trademark infringement claim involves the following elements:
The trademark holder must show that its mark is distinctive, that it owns the mark, and that the defendant’s use of the mark for identical or substantially similar products or services creates a likelihood of confusion among consumers as to the source or sponsorship of those goods or services. In addition, federal registration provides proof of the validity of the mark and of its ownership, which entitles the registrant to a strong presumption in trademark infringement lawsuits.
For trademark infringement and dilution suits, plaintiffs can seek injunctive relief as well as monetary damages, including lost profits and the costs of the suit. In some cases, a court may also award treble damages for bad faith infringement or for dilution that occurs in interstate commerce.
However, a successful trademark infringement or dilution suit often requires significant legal fees and the expense of changing names, logos, business practices, and even product offerings. For this reason, businesses should consider all potential legal risks when developing a new name or mark for goods and services. Moreover, because of the First Amendment’s free speech protection, certain marks that were previously prohibited from being trademarked (such as negative connotations) are now legally protectable.
Trademark Dilution
Trademark dilution is when the distinctiveness of a famous mark is diminished by association with less recognizable goods or services. Dilution laws generally protect a famous mark’s ability to identify and distinguish its goods or services, and they often prohibit unauthorized use of the famous mark on products that are not associated with it. Dilution is sometimes broken down into two related concepts: blurring, which weakens the trademark’s uniqueness by allowing it to signify more than one product (such as GOOGLE appearing on toothpaste), and tarnishment, which harms the reputation of the mark through unsavory or unflattering associations (such as Apple’s logo appearing on cheap knockoff electronics).
In order to qualify for protection under a dilution statute, a famous mark must be widely recognized in the general consuming public, and courts and trademark offices determine fame on a case-by-case basis. Successful dilution plaintiffs are granted a wide variety of relief, including injunction against future infringement and monetary compensation for losses and expenses sustained by the famous mark.
However, there are some uses of a mark that do not constitute dilution under a statutory scheme, such as fair use in news commenting or news reporting, parody, and criticism or commentary on the owner of a mark. This is why dilution claims are usually accompanied by a non-use or fair use defense.