Trademark law protects names, words, symbols, colors, shapes and sounds that identify the source of goods or services. Some marks qualify for protection at the outset of their use in commerce; others require that they acquire secondary meaning in the consuming public.
스토킹변호사Generally speaking, stronger trademarks enjoy greater legal protection. Those that are arbitrary, suggestive or descriptive receive less protection.
Trademark Registration
Unlike patents and copyrights, which expire after a fixed period of time, trademarks can be kept in force indefinitely as long as the registrant actively uses the mark in commerce and pays periodic renewal fees. This is important because the value of a trademark is in its association with goods and services rather than in the mark itself.
Trademark law generally requires that a mark be used in commerce when applying for registration, although you can register your name even if you have not yet begun using it in commerce provided you demonstrate a good faith intent to do so at some future date. Furthermore, registration provides a legal presumption that you own the mark and have the right to use it, thus eliminating the need for copious evidence in a trademark infringement lawsuit.
A trademark can be a word, design, letter, number, color, three-dimensional mark or a combination of these elements. It must distinguish the goods or services of one enterprise from those of others, and it must be visible to the public to serve its identifying function.
Trademark Searching
A trademark search is the process of researching your proposed mark to make sure that it is distinctive enough to be registered with the United States Patent and Trademark Office. A thorough search can save you a lot of time, money, and headaches in the long run. It’s essential to conduct a trademark search before using a mark in commerce or applying to register it.
Performing a search will reveal whether your mark is similar to or identical to an existing registered, pending, or unregistered trademark. If you proceed to use a mark without first conducting a clearance search, you may find yourself in a legal battle against an established brand owner who feels that your mark is too similar to their own.
A comprehensive trademark search is typically conducted by a qualified intellectual property lawyer. It involves a deep analysis of your mark and the goods and services it represents, and an examination of existing marks to determine if there is a likelihood of confusion. A full search will include federal trademark registrations, pending applications, state trademark registrations, common law trademarks, business names, and domain names.
Trademark Licensing
Almost any word, phrase, logo or symbol used by a producer to identify its goods and distinguish them from those of another can be protected as a trademark. In addition, product shapes, sounds and even fragrances may qualify as marks. The law provides a number of different ways to acquire trademark rights, including common law rights which stem from actual use and federal registration.
Regardless of the legal method of acquiring trademark protection, a mark must be maintained through active use to maintain its strength. This is because if a trademark goes unused for three consecutive years, it can be deemed abandoned by the courts.
Trademark licensing arrangements provide a means to share the work of maintaining and promoting trademarks with trusted partners. A license can be exclusive or nonexclusive, and it can apply to specific geographic areas. Quality control provisions include the ability to inspect licensee facilities and review representative samples of associated products to ensure they meet established quality standards. This is an important provision for licensors, who must retain the ability to protect their brands from the erosion of the goodwill that consumers associate with them.
Trademark Dilution
Trademark dilution laws give the owners of famous marks standing to prevent others from using their mark in ways that lessen the distinctiveness of the mark. Successful plaintiffs can win a wide range of monetary relief including injunctions against further infringement and damages sustained by the plaintiff.
There are two kinds of trademark dilution: blurring and tarnishment. Blurring happens when a mark is used on dissimilar products (for example, Kodak brand bicycles and Xerox brand cigarettes). It doesn’t have to cause confusion, but the use of the mark in this way weakens its ability to serve as a unique identifier.
Tarnishment, on the other hand, happens when a famous mark is associated with unseemly or inferior goods. This tarnishes the reputation of the mark and makes it harder for consumers to trust the mark.
There are certain uses of a famous mark that aren’t actionable as dilution, including advertising or promotions that allow consumers to compare goods or services; identifying and parodying, criticizing, or commenting upon the owner of the mark or their goods or services; and noncommercial use of the mark.
Trademark Infringement
Trademark law protects names, logos, words, phrases, sounds, product configurations and symbols that identify the source of goods or services in the minds of consumers. It allows a trademark holder to sue for infringement, unfair competition or trademark dilution. Successful plaintiffs may obtain injunctions and monetary relief including profits, litigation costs and attorneys’ fees. Defendants can counter trademark claims by asserting the equitable defenses of laches, estoppel and unclean hands or by contesting a mark’s registration. They can also invoke the First Amendment defenses of fair use and collateral use. For example, use of the phrase “fish fry” in a cookbook or the name of a character on a Muppet show does not infringe upon the plaintiff’s mark for its fried fish products because such uses are clearly descriptive and do not confuse consumers.
Under federal law, a trademark infringement claim can be made when a competitor without the holder’s consent uses any reproduction, imitation, variation or copy of a registered mark in connection with the sale of goods or services and such use is likely to cause confusion, mistake or deception in the minds of consumers.