dont need for this midterm, trademark rigts of publicity

Question 1

definition of trademark

Answer 1

“word, name, symbol, or device, or any combination thereof…use[d]…to identify and distinguish goods…and to indicate the source of the goods.

Question 2

relevant federal statute

Answer 2

lanham act

Question 3

service mark

Answer 3

mark is equivalent to a trademark except it identifies services rather than goods. Service marks are also protected by the Lanham Act.

Question 4

things that can be protected by trademark laws

Answer 4

Word Marks
 Design Marks
 Composite Marks
 Sounds
 Certification marks
 Collective Marks
 Trade Dress

Question 5

certification mark

Answer 5

A mark owned by one party but used by others to certify quality, regional origin, mode of manufacture, material, accuracy or other attributes.
eg good housekeeping mark

Question 6

collective mark

Answer 6

A mark that is indicative of membership in a group

eg better business bureau

Question 7

trade dress

Answer 7

The design and appearance of the product together with all the elements making up the overall image that serves to identify the product presented to the consumer.
eg coca cola bottle

Question 8

strength of a trademark

Answer 8

The stronger the trademark, the more likely one is to get trademark protection.

Question 9

4 categories of strength (For trademarks)

Answer 9

Generic: a common word that identifies the type of product. This is the weakest. i.e. “Book” as the title of a book.
Descriptive: identifies the qualities of a product. Not distinctive, but can become distinctive (stronger) if it acquires secondary meaning. i.e. “People” magazine (gets narrow protection)
Suggestive: suggests product features but requires imagination to connect mark to the product. i.e. “Playboy”
Arbitrary: has no association with the product it represents. Strongest type of mark. i.e. Kodak, the band “Supernova”

Question 10

is registration required for a trademark

Answer 10

no

Question 11

what advantages do registration give

Answer 11

the presumption of ownership and validity, being prima facie evidence in a trial, making the mark uncontestable if not challenged within 5 years of registration.

Question 12

when can you file a mark

Answer 12

You can file for a mark currently in use or for a mark that you intend to use within the next 6 months.

Question 13

what do you need to prove trademark infringement?

Answer 13

The plaintiff has a valid mark,
The defendant used the mark in commerce without the plaintiff’s permission, and
The defendant’s use of the plaintiff’s mark is likely to cause consumer confusion.

To determine validity of the mark, the courts will look to see if the mark is registered. If not, the plaintiff will have to prove common law protection.

A mark is used in commerce if displayed on goods in commerce or if used in advertising for a service.

Question 14

8 factors to consider after polaroid cor vs polaroid elecs corp

Answer 14

The strength of the mark
The degree of similarity between the plaintiff’s and defendant’s marks
The proximity of the products or services (i.e. Same market? Direct competitors?)
The likelihood that defendant will expand his business to compete in the same space as plaintiff
Evidence of actual confusion (i.e. consumer complaints)
Defendant’s good faith in adopting the mark (i.e. intent)
The quality of the defendant’s product or service (is it of inferior or equal quality to plaintiff’s product?)
The sophistication of the buyers

Question 15

damages

Answer 15

Defendant’s profits
Plaintiff’s actual damages
Statutory damages
Attorney’s fees in exceptional cases

Injunction to stop competing uses of a mark

Question 16

right of publicity

Answer 16

The right of publicity is the inherent right of every person to control the commercial use of his or her identity.

The right of publicity is also called misappropriation of an individual’s identity or identifiable aspects.

It protects against the use of an individual’s identity – name, photograph, voice, etc. – for commercial purposes without his or her permission.

The individual need not be a celebrity, although many famous cases surround misappropriation of a celebrity’s identity.