Trademarks A trademark or trade mark is a distinctive sign or indicator used by an individual, business organization, or other legal entity to identify that the products or services to consumers with which the trademark appears originate from a unique source, and to distinguish its products or services from those of other entities were traditionally protected in the United States ^ b. English is the de facto language of American government and the sole language spoken at home by 80% of Americans age five and older. Spanish is the second most commonly spoken language only under State common law Common law is law developed by judges through decisions of courts and similar tribunals , rather than through legislative statutes or executive branch action. A "common law system" is a legal system that gives great precedential weight to common law, on the principle that it is unfair to treat similar facts differently on different, growing out of the tort A Tort is the French word for a "wrong." A tort is a civil wrong. A civil wrong is involves a breach of a duty owed to someone else, as opposed to criminal wrongdoing which involves a breach of a duty owed to society. Torts are civil wrongs other than breaches of contract and certain equitable wrongs of unfair competition Unfair competition in commercial law refers to a number of areas of law involving acts by one competitor or group of competitors which harm another in the field, and which may give rise to criminal offences and civil causes of action. The most common actions falling under the banner of unfair competition include:. As early as 1791, Thomas Jefferson proposed that the marks of sailcloth Sails have been made from cloth for all of recorded history. Typically sails were made from flax , hemp or cotton in various forms including canvas. However, modern sails are rarely made from natural fibers. Most sails are made from synthetic fibers ranging from low-cost nylon or polyester to expensive aramids or carbon fibers. Recent strides in makers could be protected under the Commerce Clause The Commerce Clause is an enumerated power listed in the United States Constitution . The clause states that the United States Congress shall have power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes". Courts and commentators have tended to discuss each of these three areas of, but it was not until 1870 that Congress The United States Congress is the bicameral legislature of the federal government of the United States of America, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C first attempted to establish a federal regime for the protection of trademarks. This statute, purported to be an exercise of the Copyright Clause At the time that the Constitution was written, both patent and copyright protections had long existed in the United Kingdom. The incorporation of these rights in the Constitution was therefore not a contentious issue. On August 18, 1787, the Constitutional Convention was in the midst of a weeks-long stretch of entertaining proposals to establish powers, was struck down in the Trade-Mark Cases, leading Congress to finally create a successful act under its Commerce Clause The Commerce Clause is an enumerated power listed in the United States Constitution . The clause states that the United States Congress shall have power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes". Courts and commentators have tended to discuss each of these three areas of power in 1881.
A major revision was enacted in 1905, and in 1946, Congress passed the Lanham Act The Lanham Act (title 15, chapter 22 of the United States Code) is a piece of legislation that contains the federal statutes of trademark law in the United States. The Act prohibits a number of activities, including trademark infringement, trademark dilution, and false advertising (15 U.S.C. Notable legislation in the title includes the Federal Trade Commission Act, the Clayton Antitrust Act, the Sherman Antitrust Act, the Securities Exchange Act of 1934, the Consumer Product Safety Act, and the CAN-SPAM Act of 2003 § 1051–1127), which currently defines federal protection and registration for trademarks, administered by the United States Patent and Trademark Office The United States Patent and Trademark Office is an agency in the United States Department of Commerce that issues patents to inventors and businesses for their inventions, and trademark registration for product and intellectual property identification ("USPTO"). State law continues to add its own protection, complementing the federal system.
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Obtaining a trademark
A person or business entity acquires rights in a trademark either by using it in the normal course of business (for example on a tag or label for merchandise being sold to the public) or by filing an application for registration of the mark in the USPTO. An application for registration may be based upon actual use in commerce or upon a bona fide Good faith, or in Latin bona fides , is good, honest intention (even if producing unfortunate results) or belief. In law, it is the mental and moral state of honesty, conviction as to the truth or falsehood of a proposition or body of opinion, or as to the rectitude or depravity of a line of conduct. This concept is important in law, especially intent to use (ITU). An ITU application will not become a registration until documents evidencing actual use of the mark in interstate commerce The Commerce Clause is an enumerated power listed in the United States Constitution . The clause states that the United States Congress shall have power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes". Courts and commentators have tended to discuss each of these three areas of, which generally must be shown within a limited time period. Infringing use can only be stopped with actual registration, not an ITU. The value of ITU is in establishing priority—who acquired the right to use the mark first—and so infringers are on borrowed time pending that registration. Trademarks which are not used in interstate commerce can usually be registered on the state A U.S. state is any one of 50 federated states of the United States of America that share sovereignty with the federal government. Because of this shared sovereignty, an American is a citizen both of the federal entity and of his or her state of domicile. Four states use the official title of commonwealth rather than state. State citizenship is level, usually by filing an application with the Secretary of State Secretary of State is an official in the state governments of 47 of the 50 states of the United States, as well as Puerto Rico and other U.S. possessions. In Massachusetts, Pennsylvania, and Virginia, this official is called the Secretary of the Commonwealth. In the states of Alaska, Hawaii, and Utah, there is no Secretary of State; in those in the state in which one is doing business.
An individual may represent himself before the USPTO in attempting to register a trademark. However, there are many pitfalls that can trap someone who is not experienced in trademark prosecution matters. An experienced attorney who specializes in trademark registrations typically will charge $800.00 to $1500.00 for preparing and filing an application for trademark registration. If the application is initially rejected because the mark is deemed descriptive or generic, then there will be additional fees for attempting to overcome such rejections.
Recent developments in U.S. trademark law have included the adoption of the Federal Trademark Dilution Act of 1995 (see Trademark dilution Trademark dilution is a trademark law concept permitting the owner of a famous trademark to forbid others from using that mark in a way that would lessen its uniqueness. In most cases, trademark dilution involves an unauthorized use of another's trademark on products that do not compete with, and have little connection with, those of the trademark), the 1999 Anti-Cybersquatting Cybersquatting , according to the United States federal law known as the Anticybersquatting Consumer Protection Act, is registering, trafficking in, or using a domain name with bad faith intent to profit from the goodwill of a trademark belonging to someone else. The cybersquatter then offers to sell the domain to the person or company who owns a Consumer Protection Act, and the Trademark Dilution Revision Act of 2006 (see Trademark dilution Trademark dilution is a trademark law concept permitting the owner of a famous trademark to forbid others from using that mark in a way that would lessen its uniqueness. In most cases, trademark dilution involves an unauthorized use of another's trademark on products that do not compete with, and have little connection with, those of the trademark).
Consistent with the limited nature of trademark protection and the free speech Freedom of speech is the freedom to speak without censorship or limitation, or both. The synonymous term freedom of expression is sometimes used to indicate not only freedom of verbal speech but any act of seeking, receiving and imparting information or ideas, regardless of the medium used. In practice, the right to freedom of speech is not guarantees of the First Amendment The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law "respecting an establishment of religion", impeding the free exercise of religion, infringing on the freedom of speech, infringing on the freedom of the press, interfering with the right to peaceably assemble, U.S. law provides for a fair use defense to trademark infringement comparable to that under copyright law. The two main categories of protected usage are nominative—using the trademark to actually refer to the trademarked product or trademark owner; and usage of the mark in its common sense, such as a descriptive word or common and unoriginal symbol. For example, Pepsi Pepsi is a carbonated soft drink produced and manufactured by PepsiCo. The drink was first made in the 1890s by pharmacist Caleb Davis Bradham in New Bern, North Carolina. The brand was trademarked on June 16, 1903. There have been many Pepsi variants produced over the years since 1898 advertisements may use Coca Cola Coca-Cola is a carbonated soft drink sold in stores, restaurants, and vending machines internationally. The Coca-Cola Company claims that the beverage is sold in more than 200 countries. It is produced by The Coca-Cola Company in Atlanta, Georgia, and is often referred to simply as Coke . Originally intended as a patent medicine when it was's trademark when making comparisons to Pepsi products. These uses are still subject to the requirement that there be no consumer confusion as to source or sponsorship. Trademarks may also be lawfully used in parodies A parody , in contemporary usage, is a work created to mock, comment on, or make fun at an original work, its subject, author, style, or some other target, by means of humorous, satiric or ironic imitation. As the literary theorist Linda Hutcheon (2000: 7) puts it, "parody … is imitation, not always at the expense of the parodied text.", since in that case there is usually no likelihood of confusion.
Registered marks versus common law marks
In the United States, a trademark which has been registered with the USPTO uses the ® symbol The registered trademark symbol, designated by ® , is a symbol used to provide notice that the preceding mark is a trademark or service mark that has been registered with a national trademark office. In some countries, including Hong Kong, it is against the law to use the registered trademark symbol for a mark that is not officially registered in. A business that does not actually register a trademark may instead use the common law designation "TM" in superscript next to the mark. Using the "TM" mark The trademark symbol, designated by ™ , is a symbol used to provide notice that the preceding mark is a trademark. Use of this symbol does not mean that the trademark has been registered as registered trademarks are indicated using the Registered trademark symbol (®) does not actually confer any legal rights in federal law, but it may nevertheless help a business acquire secondary meaning concerning a specific mark.
Registered and non-registered trademarks are both eligible for protection under the Lanham Act The Lanham Act (title 15, chapter 22 of the United States Code) is a piece of legislation that contains the federal statutes of trademark law in the United States. The Act prohibits a number of activities, including trademark infringement, trademark dilution, and false advertising. The advantage of having a registered mark is that after five years of unopposed use, the mark becomes "incontestable". An incontestable mark cannot be attacked on the grounds that it is merely descriptive (even if it is). This means that the defendant in a trademark infringement Trademark infringement is a violation of the exclusive rights attaching to a trademark without the authorization of the trademark owner or any licensees . Infringement may occur when one party, the "infringer", uses a trademark which is identical or confusingly similar to a trademark owned by another party, in relation to products or suit cannot directly attack the plaintiff's mark, but must instead focus on showing a lack of a likelihood of confusion. Even without incontestability, a registered mark has a presumption of being a valid trademark, placing the burden on the defendant A defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute. (Note that American lawyers and judges often pronounce the word slightly differently than is common in standard American to attack the plaintiff A plaintiff , also known as a claimant or complainant, is the term used in some jurisdictions, for the party who initiates a lawsuit (also known as an action) before a court. By doing so, the plaintiff seeks a legal remedy, and if successful, the court will issue judgment in favor of the plaintiff and make the appropriate court order (e.g., an's mark.
Differences from related laws
Unlike copyright Copyright is the set of exclusive rights granted to the author or creator of an original work, including the right to copy, distribute and adapt the work. These rights can be licensed, transferred and/or assigned. Copyright lasts for a certain time period after which the work is said to enter the public domain. Copyright applies to a wide range of law which provides for criminal penalties as well as civil damages, trademark law in the United States ^ b. English is the de facto language of American government and the sole language spoken at home by 80% of Americans age five and older. Spanish is the second most commonly spoken language is almost entirely enforced through private lawsuits A lawsuit, or "suit in law", is a civil action brought before a court of law in which a plaintiff, a party who claims to have received damages from a defendant's actions, seeks a legal or equitable remedy. The defendant is required to respond to the plaintiff's complaint. If the plaintiff is successful, judgment will be given in the. The exception is in the case of criminal counterfeiting A counterfeit is an imitation, usually one that is made with the intent of fraudulently passing it off as genuine. Counterfeit products are often produced with the intent to take advantage of the established worth of the imitated product. The word counterfeit frequently describes both the forgeries of currency and documents, as well as the of goods. Otherwise, the responsibility is entirely on the mark owner to file suit in either state or federal civil court in order to restrict an infringing use. Failure to "police" a mark by stopping infringing uses can result in the loss of protection.
Also in contrast to copyright or patent A patent is a set of exclusive rights granted by a state (national government) to an inventor or their assignee for a limited period of time in exchange for a public disclosure of an invention law, trademark protection has no expiration. As long as the mark is continually used, it can be protected from infringement indefinitely.
Because federal trademark law is derived from Congress' Commerce Clause power, and not a specific clause in the U.S. Constitution (like copyrights and patents), there must be some degree of interstate commerce The Commerce Clause is an enumerated power listed in the United States Constitution . The clause states that the United States Congress shall have power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes". Courts and commentators have tended to discuss each of these three areas of present for a trademark to receive Lanham Act The Lanham Act (title 15, chapter 22 of the United States Code) is a piece of legislation that contains the federal statutes of trademark law in the United States. The Act prohibits a number of activities, including trademark infringement, trademark dilution, and false advertising protection. The U.S. Supreme Court Clerks · Reporter of Decisions invalidated the first federal trademark law by finding that Congress could not stretch the Copyright Clause At the time that the Constitution was written, both patent and copyright protections had long existed in the United Kingdom. The incorporation of these rights in the Constitution was therefore not a contentious issue. On August 18, 1787, the Constitutional Convention was in the midst of a weeks-long stretch of entertaining proposals to establish to cover trademarks,[1] so Congress had to fall back to only those trademarks used in interstate commerce instead.
See also
- Canadian trademark law
- Concurrent use registration
- Genericized trademark A genericized trademark is a trademark or brand name that has become the colloquial or generic description for or synonymous with a general class of product or service, rather than the specific meaning intended by the trademark's holder. Using a genericized trademark to refer to the general form of what that trademark represents is a form of
- Imperial Group v. Philip Morris
- Service mark A service mark or servicemark is a trademark used in some countries, notably the United States, to identify a service rather than a product. When a service mark is federally registered, the standard registration symbol ® or "Reg U.S. Pat & TM Off" may be used . Before it is registered, it is common practice (with some legal standing)
- Trademark dilution Trademark dilution is a trademark law concept permitting the owner of a famous trademark to forbid others from using that mark in a way that would lessen its uniqueness. In most cases, trademark dilution involves an unauthorized use of another's trademark on products that do not compete with, and have little connection with, those of the trademark
- United States copyright law Copyright law in the United States is part of federal law, and is authorized by the U.S. Constitution. The power to enact copyright law is granted in Article I, Section 8, Clause 8, also known as the Copyright Clause, which states:
- United States patent law United States patent law was established "to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;" as provided in the United States Constitution. Congress implemented these protections as a first-to-invent patent legal
External links
| The Wikibook US Trademark Law has a page on the topic of US Trademark Law |
- Text of the Lanham Act
- Website of the US Patent and Trademark Office (including search facility)
- Fair Use Network by the NYU Brennan Center for Justice (information about copyright & trademark fair use)
References
- ^ The Trade-Mark Cases, 100 U.S. The United States Reports are the official record of the rulings, orders, case tables[clarification needed], and other proceedings of the Supreme Court of the United States. Opinions of the court in each case, prepended with a headnote prepared by the Reporter of Decisions, and any concurring or dissenting opinions are published sequentially. The 82 (1879).
Categories: Trademark law by jurisdiction | United States trademark law
