Your Trademark And Five Primary Principles Of Trademark Law ...

Branding is an essential part of any successful venture, and trademarks are one of the most recognizable forms of branding that exists. While most people realize a trademark?s sole purpose is to distinguish one company or product from another, most do not know the basic principles behind trademark law. Here are a few things to consider while developing your trademark and before you contact a trademark law attorney:

1. The definition of a trademark. The United States legal definition of a trademark is, ?a word, phrase, symbol or design, or a combination thereof, that identifies and distinguishes the source of the goods of one party from those of others.? A service mark is essentially the same thing but identifies the source of services from another. It is not uncommon to use the term trademark to refer to both trademarks and service marks. The main pre-requisite for a trademark is that it is distinctive.

2. Trademark distinctiveness. Legally, trademarks are divided into four different categories of distinctiveness, which determine the degree of protection: arbitrary or fanciful, suggestive, descriptive, or generic. Both arbitrary and fanciful trademarks have no logical connection to the product. A fanciful trademark has no meaning other than its function as a trademark. Kodak, Xerox, and Lego are all examples of fanciful trademarks. An arbitrary mark, however, has a meaning separate from its use as a trademark. Some examples are Apple computers, Domino sugar, and Diesel jeans. Since fanciful and arbitrary marks are inherently distinctive, they are provided the highest degree of protection.

Suggestive trademarks also are afforded a high degree of protection since they evoke but do not directly describe a defining characteristic of the product. Well known examples include Coppertone, 7-11, and Greyhound. It may be difficult to discern the difference between suggestive and descriptive marks, but if a mark requires imagination, thought, and perception, it is suggestive rather than descriptive. Since descriptive trademarks literally describe the product, they are not inherently distinctive and must acquire a secondary meaning in order to be protected. A secondary meaning is formed when consumers associate the term with a particular provider of goods and services. Holiday Inn, American Airlines, and Dell Computers are all descriptive trademarks.

Lastly, a generic mark is the common name for goods or services and does not possess any distinguishing character. Salt, personal computers, and shredded wheat are all examples of generic terms that are not protected by trademark law.

3. Trademark rights and registration. The first time you use your trademark in conjunction with the sale of your goods or services, you can claim your rights to use it. You are not required to register your trademark in order to assert ownership, but if you want to receive the full rights afforded to you by trademark law, it is an excellent idea. Unregistered trademarks are represented by and unregistered service marks are signified by ?. Registered trademarks are indicated by ? and can only be used after your mark has been officially registered with the government, not prior to your application or while it is pending. In order to maintain your trademark registration, you must file a ?Declaration of Use under Section 8? between the fifth and sixth year following initial registration and a combined ?Declaration of Use and Application for Renewal under Sections 8 and 9? between the ninth and tenth year. You must file that same form every 10 years thereafter to renew your registration in perpetuity .

4. Trademark infringement. The standard for trademark infringement, or trademark dilution, is the ?likelihood for confusion,? meaning another trademark is either identical or so similar to yours that consumers may be confused by the source of the goods or services. In 1979, the Ninth District Court of appeals established the following criteria in order to determine likelihood for confusion:

Strength of the mark, Proximity of goods, Similarity of the marks, Evidence of actual confusions, Marketing channels used, Type of goods and the degree of care likely to be exercised by the purchaser, Defendant?s intent in selecting the mark, Likelihood of expansion of the product lines. A trademark law attorney will assess and build your case based upon these elements.

5. Trademark law exceptions. Just as with copyright law, there are trademark law exceptions. Specifically, they are fair use, nominative fair use, and parody. Fair use applies when a trademark is used in good faith for its primary rather than secondary meaning and consumer confusion is unlikely to occur. One example from Harvard Law is a cereal may be described as consisting of ?all bran,? without infringing upon the Kellogg?s ?All Bran? trademark.

Nominative fair use occurs when it is necessary to use a term for the purposes of identifying another?s product. A successful nominative defense proves that the product or service cannot be readily identified without using the trademark; the user uses only as much of the mark as is necessary for the identification; and nothing suggests sponsorship or endorsement by the trademark holder.

Parodies of trademarks are permissible when they are not too directly tied to commercial use. In these circumstances, the courts must balance First Amendment protections with the likelihood of confusion and commercial gain. The basic premise is that artistic or editorial parodies of trademarks serve a valuable critical function, but should not receive significant financial gain as a result. Whether you are protecting your own trademark or defending your right to use another?s, it is important to understand all aspects of trademark law, including the defenses against trademark dilution or infringement.

While most people realize a trademark?s purpose is to distinguish one company or product from another, many do not know the primary principles behind trademark law. Learn more about trademark law from the professionals at NeffLaw.com!

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Source: http://theboardmagazine.com/2011/09/your-trademark-and-five-primary-principles-of-trademark-law/

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