Trademarks

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Trademarks
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Trademark

• A commercial symbol, word, name or other device
  that identifies and distinguishes products of a
  particular firm
  
• Trademark law entitles the owner of the mark to
  prevent others, both competitors and those in
  other industries from using the trademark to
  market their products

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Goals of Trademark Law

• The promotion of business ethics
• The refinement of distributional efficiency
• The development and maintenance of goodwill
• The preservation of competition by expanding the
  public domain

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Trademark Subject Matter

• Words, names, symbols
• Slogans
• Numbers, colors, smells, sounds
• Characters and celebrities (Brittany Spears,
  Michael Jordan)
  
• Trade Dress the overall design of a products
  package or vendors premises

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Excluded Subject Matter

• Generic words
• Scandalous, or immoral marks
• Deceptive marks
• Deceptively misdescriptive

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Other Types of Marks

• Service marks registered in relation to a
  particular type of product line of related
  services
  
• Certification marks certify that all producers
  using the mark have the characteristics of the
  group operating under that certification mark
  
• Collective marks used by members of an
  organization to identify their members

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Spectrum of Distinctiveness

• Arbitrary or fanciful inherently distinctive,
  no connection between mark and product category
  
• Suggestive indirectly suggests features of
  goods, but a connection required using human
  imagination
  
• Descriptive describes major features of the
  type of product
  
• Generic one of the few terms necessary to
  adequately describe the type of product

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Acquisition of a Trademark

• Use trademark cannot be created until the owner
  makes actual use of the mark
  
• Registration not necessary under state common
  law, however, stronger rights are available under
  state or federal trademark registration

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Domain Names

• Cybersquatting the practice of acquiring domain
  names for the ransom and resale to the original
  owners of similar marks
  
• Aticybersquatting Consumer Protection Act (ACPA)
  passed in 1999