{"id":7762,"date":"2017-11-10T21:19:24","date_gmt":"2017-11-10T21:19:24","guid":{"rendered":"https:\/\/reunitethestates.org\/?page_id=7762"},"modified":"2017-11-13T04:07:50","modified_gmt":"2017-11-13T04:07:50","slug":"trademark","status":"publish","type":"page","link":"https:\/\/reunitethestates.org\/?page_id=7762","title":{"rendered":"Trademark – word, phrase, logo, or other sensory symbol that serves as a signature for the manufacturer or seller to distinguish its products or services from those of others and to designate the source of goods or services"},"content":{"rendered":"

trademark<\/span>:<\/span>
\nn.\u00a0<\/em>(1838)<\/strong><\/span><\/p>\n

1. A word, phrase, logo, or other sensory symbol used by a manufacturer or seller to distinguish its products or services from those of others.\u00a0 *\u00a0 The main purpose of a trademark is to designate the source of goods or services. In effect, the trademark is the commercial substitute for one\u2019s signature.\u00a0 To receive federal protection, a trademark must be<\/strong><\/span><\/p>\n

(1) distinctive rather than merely descriptive or generic;
\n(2) affixed to a product that is actually sold in the marketplace; and
\n(3) registered with the U.S. Patent and Trademark Office.<\/strong><\/span><\/p>\n

\u00a0 \u00a0 \u00a0In its broadest sense, the term trademark includes a servicemark.\u00a0 Unregistered trademarks are protected under common-law<\/a> only, and distinguished with the mark \u201cTM.\u201d\u00a0 <\/strong>Often shortened to mark<\/em><\/strong><\/span>.<\/span><\/p>\n

2. The body of law dealing with how businesses distinctively identify their products.<\/strong> -Abbr. TM. See LANHAM ACT; MERCHANT\u2019S MARK. Cf. SERVICEMARK; registered trademark; BRAND; TRADENAME. [1]<\/span><\/p>\n

1. A mark, design title, logo, or motto used in the sale or advertising of producs to identify them and distinguish them from the products of others.\u00a0 A trademark is the property of its owner and, when registered under the Trademark Act, is reserved for the exclusive use by its owner.\u00a0 <\/strong><\/span>Compare to<\/em> service mark<\/strong>.\u00a0\u00a0Also compare\u00a0<\/em>trade name<\/strong>.\u00a0\u00a0See\u00a0<\/em>collective mark<\/strong>. [2]<\/strong><\/span><\/p>\n

\u00a0 \u00a0 \u00a0Excerpt from\u00a0Mishawaka Rubber & Woolen Mfg. Co. v. 5.5. Kresge Co.<\/a>\u00a0<\/em>(1942):<\/strong><\/span><\/p>\n

\u00a0 \u00a0 \u00a0\u201cThe protection of trade-marks is the law\u2019s recognition of the psychological function of symbols.\u00a0 If it is true that we live by symbols, it is no less true that we purchase goods by them.\u00a0 A trade-mark is a merchandising short-cut which induces a purchaser to select what he wants, or what he has been led to believe he wants.\u00a0 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\u00a0<\/span><\/strong><\/span>congenial symbol.\u00a0 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.\u00a0 If another poaches upon the commercial magnetism of the symbol he has created, the owner can obtain legal redress.<\/span>\u201d\u00a0<\/strong>[3]<\/span><\/p>\n

\u00a0 \u00a0 \u00a0Excerpt from Rudolf Callmann’s\u00a0The Law of Unfair Competition, Trademarks and Monopolies<\/a><\/em>\u00a0(4th ed. 1998):<\/strong><\/span><\/p>\n

\u00a0 \u00a0 \u00a0\u201cA trademark functions on three different levels: as an indication of origin or ownership, as a guarantee of constancy of the quality or other characteristics of a product or service, and as a medium of advertisement. Thus, a trademark guarantees, identifies, and sells the product or service to which it refers. These three facets of a trademark \u2014 of differing\u00a0<\/span><\/strong><\/span>95 \/ trademark, n. (1838) l. A word, phrase, logo, or other\u00a0<\/strong><\/span>importance at different times, in different lines of business and for different products or services are somewhat Cora relative. The classical function, that of identification, has been primarily responsible for molding the development of trademark law. The significance of the guarantee function has been somewhat exa gerated, while the implications of the advertisement funct on still await full recognition in the law.<\/span>\u201d <\/strong>[4]<\/span><\/p>\n

\u00a0 \u00a0 \u00a0Excerpt from Frederick M. Abbott, Thomas Cottier & Francis Gurry’s\u00a0International intellectual Property in an Integrated World Economy<\/em><\/a>\u00a0(2007):<\/strong><\/span><\/p>\n

\u00a0 \u00a0 \u00a0\u201cTrademarks may consist of virtually any form of sign, including letters and words, designs, colors, shapes, sounds, and scents. A trademark allows its holder to prevent others from using an identical or confusingly similar sign to identify its goods or services in commerce. Trademark rights may last as long as the right holder continues to use the mark in commerce.\u2018 In civil-law jurisdictions, trademark rights are typically based on registration. In common-law jurisdic\u2018 tions, trademark rights may be based either on registration or on use in commerce.<\/span>\u201d <\/strong>[5]<\/span><\/p>\n

Types of Trademarks:<\/span><\/strong><\/span><\/p>\n

abandoned trademark<\/span> – <\/strong>(1890) A mark whose owner has discontinued using it and has no intent to resume using it in the ordinary course of trade, or has allowed it to become a generic term or otherwise to lose its distinctive significance.\u00a0 *\u00a0 Under \u00a7 45 of the Lanham Act, nonuse of a mark for three consecutive years is prima facie evidence of abandonment. The owner of an abandoned mark has no trademark rights to exclude others from using it.\u00a0\u2014 <\/strong>aka abandoned mark<\/strong><\/em><\/span>.<\/span><\/p>\n

arbitrary trademark<\/span> – <\/strong>(1877) A trademark containing common words that do not describe or suggest any characteristic of the product to which the trademark is assigned.\u00a0 *\u00a0 Because arbitrary marks are neither descriptive nor suggestive of the goods or services in connection with which they are used, they are inherently distinctive, require no proof of secondary meaning. and are entitled to strong legal protection. A name that would be generic if used with one product may be arbitrary if used with another. For example, \u201cBicycle\u201d may be registered to identify playing cards, but it could not be protected as a mark to identify bicycles. <\/strong>\u2014 aka arbitrary mark<\/span><\/strong><\/em>; arbitrary name<\/em><\/strong><\/span>.<\/span><\/p>\n

collective trademark<\/span> – <\/strong>(1941) A trademark or servicemark used by an association, union, or other group either to identify the group\u2019s products or services or to signify membership 1n the group. O Collective marks such as \u201cRealtor\u201d or \u201cAmerican Peanut Farmers\u201d -can be federally registered under the Lanham Act.\u2014 <\/strong>aka collective mark<\/strong><\/em><\/span>.\u00a0<\/span><\/p>\n

Community trademark<\/span> –\u00a0<\/strong>(1961) A trademark registered with the European Union Trademark Office and recognized 1n all EU countries.\u2014 <\/strong>aka Community\u00a0<\/strong><\/em><\/span><\/span>mark<\/strong><\/em><\/span>.<\/span><\/p>\n

composite trademark<\/span> – <\/strong>(1920) A trademark or servicemark made up of several words that form a distinctive whole, even if the individual words are ordinary.\u00a0 *\u00a0 Advertising slogans are often protectable as composite marks. A trademark registrant can establish ownership in the whole mark, but must disclaim\u00a0<\/strong><\/span>
\nownership in any unregistrable parts. <\/strong>aka composite mark<\/em><\/span><\/strong>; hybrid mark<\/span><\/em><\/strong>; hybrid trademark<\/span><\/em><\/strong>.<\/span><\/p>\n

counterfeit trademark<\/span> – <\/strong>(1862) A spurious mark that is identical to, or substantially indistinguishable from, a\u00a0<\/strong><\/span>registered trademark. 15 USCA 5 1116(d)(1)(B)<\/a>. <\/strong>aka counterfeit mark<\/strong><\/span><\/em>.<\/span><\/p>\n

descriptive trademark<\/span> – <\/strong>(1917) A trademark that is a meaningful word in common usage or that merely describes or suggests a product.\u00a0 * This type of trade mark is entitled to protection only if it has acquired distinctiveness over time. \u2014 <\/strong>aka descriptive mark<\/strong><\/span><\/em>; weak mark<\/strong><\/em><\/span>; weak trademark<\/span><\/em>.\u00a0 <\/strong>See SECONDARY MEANING<\/strong><\/em><\/span>.<\/span><\/p>\n

disparaging trademark<\/span> – <\/strong>(1976) A trademark that tends \u2018 to bring a person or class of people into contempt or disrepute.\u00a0 *\u00a0 Section 2(a) of the Lanham Act prohibits the registration of disparaging marks. <\/strong>See 15 USCA \u00a7 1052(a)<\/a>. <\/strong>\u2014 aka disparaging mark<\/em><\/span><\/strong>.\u00a0 <\/strong>See pro<\/em><\/span><\/strong><\/span>hibited and reserved trademark<\/em><\/span><\/strong>.<\/span><\/p>\n

distinctive trademark<\/span> –<\/strong> (1860) A very strong trademark, one that consumers immediately and consistently associate with specific goods and services.\u00a0 *\u00a0 Distinctive trademarks are usually fanciful, arbitrary, or suggestive, but descriptive trademarks and common names can become distinctive if they become so well known as to acquire a secondary meaning. <\/strong>\u2014 aka distinc<\/strong><\/span><\/em><\/span>tive mark<\/strong><\/span><\/em>.<\/span><\/p>\n

famous trademark<\/span> – <\/strong>(1907) A trademark that not only is distinctive but also has been used and heavily advertised or widely accepted in the channels of trade over a long time, and is so well known that consumers immediately associate it with one specific product or service.\u00a0 *\u00a0 Only famous marks are protected from dilution. Eight nonexclusive statutory factors are often used in determining whether a particular mark is famous. <\/strong>See 15 USCA \u00a7\u00a7 1125 (c)(1)(A)–(H)<\/a>. <\/strong>\u2014 aka famous mark<\/strong><\/em><\/span>.<\/span><\/p>\n

fanciful trademark<\/span> <\/strong>(1904) A trademark consisting of a made-up or coined word; a distinctive trademark or tradename having no independent meaning. 0 This type of mark is considered inherently distinctive and thus protected at common law, and is eligible for trademark registration from the time of its first use. <\/strong>\u2014 aka fanciful mark<\/span><\/em><\/strong>; fanciful term<\/strong><\/em><\/span>; coined trademark<\/strong><\/em><\/span>; coined mark<\/strong><\/em><\/span>; coined term<\/strong><\/span><\/em>.\u00a0<\/span><\/p>\n

geographically descriptive trademark<\/span> –<\/strong> (1981) A trade mark that uses a geographic name to indicate where the goods are grown or manufactured (e.g., \u201cChampagne\u201d).\u00a0 *\u00a0 This type of mark is protected at common law, and can be registered only on proof that it has acquired distinctiveness over time. <\/strong>\u2014 aka geographically descriptive mark<\/span><\/em><\/strong>.\u00a0\u00a0<\/strong>See GEOGRAPHIC INDICATOR<\/span><\/strong>; SECONDARY MEANING<\/span><\/strong>.\u00a0<\/span><\/p>\n

house trademark<\/span> –\u00a0<\/strong>(1942) A trademark that identifies a company, a division of a company, or a company\u2019s product line as the source of a product or service.\u00a0 *\u00a0 A house mark and a product mark often appear together on a label. <\/strong>\u2014 aka house mark<\/strong><\/span><\/em>.\u00a0<\/strong><\/span><\/p>\n

product trademark<\/span> –\u00a0<\/strong>(1950) A trademark that identifies a single good or service, rather than the producing\u00a0<\/strong><\/span>company, a division of a company, or a product line.\u00a0 *\u00a0 A product mark and a house mark often appear together on a label. <\/strong>\u2014 aka product mark<\/em><\/span><\/strong>.<\/span><\/p>\n

prohibited and reserved trademark<\/span> –\u00a0<\/strong>(2004) A mark that is not protected under the Lanham Act because it either falls into an expressly excluded category or else\u00a0<\/strong><\/span>is similar to a mark granted by statute to another. 15 USCA 5<\/a><\/strong><\/span>\u00a0\u00a7 1052<\/a>. <\/strong>\u2014 aka\u00a0prohibited and reserved mark<\/span><\/em>.<\/strong><\/span><\/p>\n

registered trademark<\/span> – <\/strong>(1865) A trademark that has been filed and recorded with the Patent and Trade mark Office.<\/a>\u00a0 *\u00a0 A federally registered trademark is usually marked by the symbol \u201c\u00ae\u201d or a phrase such as \u201cRegistered U.S. Patent & Trademark Office\u201d so that the trademark owner can potentially collect treble damages or the defendant\u2019s profits for an infringement.\u00a0 If the symbol is not used, the owner can collect these damages or profits only by proving that the defendant actually knew that the mark was registered. <\/strong>\u2014 aka registered mark<\/span><\/em>.\u00a0<\/strong><\/span><\/p>\n

strong trademark<\/span> –<\/strong> (1946) An inherently distinctive trademark that is Used usu. by the owner only -in a fictitious, arbitrary, and fanciful manner, and is therefore given’ greater protection than a weak mark under the trademark laws. <\/strong>\u2014 aka strong mark<\/strong><\/span><\/em>.<\/span><\/p>\n

suggestive trademark<\/span> – <\/strong>(1894) A trademark that suggests rather than describes the particular characteristics of a product, thus requiring a consumer to use imagination to draw a conclusion about the nature of the product.\u00a0 *\u00a0 A suggestive trademark is entitled to protection without proof of secondary meaning. <\/strong>\u2014 aka evocative mark<\/strong><\/span><\/em>; suggestive mark<\/strong><\/span><\/em>; suggestive name<\/strong><\/em><\/span>.<\/span><\/p>\n

technical trademark<\/span> – <\/strong>(1868) A mark that satisfies all the elements of a common-law trademark.\u00a0 *\u00a0 The essential elements of a technical trademark are as follows:<\/strong><\/span><\/p>\n

(1) its use to designate a commercial source would not interfere with anyone else\u2019s right to use the mark; (2) it must primarily identify the source, rather than the product\u2019s category or grade of quality;
\n(3) it must be attached to the product, label, or collateral materials rather than merely used in advertising; and
\n(4) its use must not undermine some public policy, as by being scandalous or deceptive. <\/strong><\/span><\/p>\n

\u2014 aka pure trademark<\/span><\/em><\/strong>; technical mark<\/strong><\/span><\/em>; true trademark<\/strong><\/span><\/em>.\u00a0<\/span>[1]<\/span><\/p>\n

References:<\/strong><\/span><\/p>\n

Disclaimer:<\/span> All material throughout this website is pertinent to people everywhere, and is being utilized in accordance with Fair Use<\/a>.<\/strong><\/span><\/p>\n

\n

[1]: Black’s Law Dictionary Deluxe Tenth Edition<\/em><\/a> by Henry Campbell Black, Editor in Chief Bryan A. Garner. ISBN: 978-0-314-61300-4<\/strong><\/span><\/p>\n

[2]:\u00a0\u00a0Ballantine’s Law Dictionary Legal Assistant Edition<\/em><\/a>
\nby Jack Ballantine\u00a0(James Arthur 1871-1949).\u00a0\u00a0<\/em>Doctored<\/a>\u00a0<\/em>by\u00a0Jack G. Handler,\u00a0J.D.<\/a>\u00a0\u00a9 1994 Delmar by Thomson Learning.\u00a0 ISBN 0-8273-4874-6.<\/strong><\/span><\/p>\n

[3]: Mishawaka Rubber & Woolen Mfg. Co. v. 5.5. Kresge Co.<\/em>, 316 U.S. 203, 205, 62 S.Ct. 1022, 1024 (1942) on Justia:\u00a0\u00a0https:\/\/supreme.justia.com\/cases\/federal\/us\/316\/203\/case.html<\/a><\/strong><\/span><\/p>\n

[4]: 3 Rudolf Callmann, The Law of Unfair Competition, Trademarks and Monopolies<\/a><\/em> I 17.01, at 2 (4th ed. 1998):\u00a0https:\/\/library.law.yale.edu\/law-unfair-competition-trademarks-and-monopolies<\/a><\/strong><\/span><\/p>\n

[5]:\u00a0Frederick M. Abbott, Thomas Cottier & Francis Gurry, International intellectual Property in an Integrated World Economy<\/em><\/a> 8 (2007):\u00a0www.amazon.com\/International-Intellectual-Property-Integrated-Economy\/dp\/0735539588<\/a><\/strong><\/span><\/p>\n

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