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Intellectual Property > Intellectual Property: Chap. 2 > Flashcards

Intellectual Property: Chap. 2 Flashcards

1
Q

What are the 4 types of marks?

A
  1. Trademarks, service marks, certification marks, and collective marks.
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2
Q

What is a certification mark?

A

They are used to certify some quality of a product or service.

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3
Q

What is a collective mark?

A

Indicates membership in an organization.

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4
Q

What does it mean if it’s ‘coined’?

A

The term is made up.

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5
Q

What marks cannot be registered?

A
  1. Marks that disparage a person.

2. Marks that are scandalous.

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6
Q

How old are trademarks?

A

Contemporary trademark law can be traced back to use of trademarks during the medieval period.

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7
Q

What was the first trademark?

A

It was a mark used to identify liquid paints by Averill Paints - an eagle.

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8
Q

What is goodwill?

A

The value inherent in achieving consumer loyalty to a particular product or service through the maintenance of consistent quality of the products or services offered.

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9
Q

What functions does the Trademark provide:

A
  1. Identification: They identify one maker’s goods or services and distinguish them from the services offered by others.
  2. They indicate that all goods or services offered under the mark are of consistent quality.
  3. They serve as an advertising device so that consumers link a product or service being offered with a mark.
  4. They indicate all products come from one producer.
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10
Q

What type of species does Trademark infringement fall under?

A

Unfair trade practices. Infringement of another’s trademark is a species of unfair competition, like false advertising.

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11
Q

What is the point of the unfair competition law?

A

It is meant to protect consumers and eliminate unfair business practices.

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12
Q

What is the modern definition of a trademark?

A

It is a word, name, symbol, or device, or a combination thereof, used by a person (including a business entity), or which a person has a bona fide intention to use in commerce, to identify and distinguish his or her goods from those manufactured or sold by others and to indicate the source of those goods.

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13
Q

What is the modern definition of service mark?

A

It is a word, name, symbol, or device, or a combination thereof, used by a person, or which a person has a bona fide intention to use in commerce to identify and distinguish the services of one person from those of others and to indicate the source of those services.

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14
Q

According to the Lanham Act, what does the term mark mean?

A

Any trademark, service mark, collective mark, or certification mark.

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15
Q

What is a certification mark?

A

It is a word, name, symbol, device, or combination thereof, used by a person other than its owner to certify that goods or services have certain features in regard to quality, material, mode of manufacture, or some other characteristic (or that the work done on the goods or services was performed by members of a union or other organization).

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16
Q

What is a collective mark?

A

One used by a collective membership organization, such as a labor union, to identify that person displaying the mark is a member of that organization.

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17
Q

What is a house mark?

A

Companies use them to distinguish a wide range of products or services.

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18
Q

What is required to make ‘use’

A
  1. It must be ‘public use’
  2. There must be a bona fide business transaction.
  3. Soliciting and accepting orders is usually sufficient to show commercial use.
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19
Q

How is priority measured with use of a trademark?

A

Priority of a trademark is measured from the date of first use.

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20
Q

What is a senior user?

A

The first user of a mark in public use.

21
Q

What is a junior user?

A

The second, according to chronology, user of the mark in public use.

22
Q

Does a purely intrastate use provide a basis for federal registration of a mark?

A

No.

23
Q

How can the requirement of interstate commerce be satisfied?

A
  1. if the goods or services are advertised in more than one state.
  2. If it is offered to citizens of more than one state.
  3. It is offered on the internet (considered a use in commerce because it is available to a national audience through the use of telephone or cable lines or wireless transmission.
24
Q

What is the intent-to-use-application?

A

The Trademark Law Revision ACt of 1988 allowed persons to file applications for marks based on a bona fide intent to use the mark in commerce in the future. Priority is measured from the date the intent-to-use application was filed, even though that filing date may precede actual use in commerce by more than three years.

25
Q

What does it mean to ‘warehouse’ a mark?

A

An owner attempts to reserve a mark only making sporadic use of it with the intent to block others from using it rather than having a true commercial intent to exploit the mark for sales.

26
Q

what is deadwood

A

unused marks

27
Q

What is another requirement to prove ‘use’?

A

The use is required is ‘bona fide use of a mark in the ordinary course of trade, and not made merely to reserve a right in the mark. Thus, an owner must make use of a mark as would be typical in the industry or trade.

28
Q

Is continued use required to maintain rights in the mark?

A

Yes.

29
Q

What is a common law trademark?

A

A party who is using a mark without any such governmental registration. It can be enforced in any geographical area in which the mark is used.

30
Q

What are the advantages of registering with the USPTO?

A
  1. Nationwide notice to the public.
  2. Ability to bar importation of goods bearing infringing trademarks.
  3. right, under the Paris convention, to obtain a registration in various foreign countries based upon the U.S. registration.
  4. The right to bring an action in Federal court for trademark infringement and recover lost profits, damges, costs, and damages.
  5. Incontestable status of the registration after five years of continuous use subsequent to the registration (meaning that the mark is immune to certain challenges), assuming appropriate documents are filed.
  6. The right to use the registration symbol.
  7. possible right to an internet domain name.
  8. Prima Facie evidence of the validity of the mark and of the registration, the registrant’s ownership of the mark, and the registrant’s exclusive right to use the mark in connection with the goods and services.
31
Q

When was the Lanham Act enacted?

A
  1. Named for the Congressman Fritz Garland Lanham who proposed legislation relating to trademarks)
32
Q

What does the Trademark Law Revision Act of 1988 provide?

A
  1. Allowing for a trademark application based on the applicant’s intent to use a mark in the future.
  2. Reducing the period of protection for federally registered marks from 20 years to 10 years (at which time the registration must be renewed.)
33
Q

What is the Trademark Manual of Examining Procedure?

A

(TMEP). The rules and regulations governing trademark applications and practice. It is published by the USPTO and provides trademark examining attorneys, trademark applicants, and trademark attorneys with a reference work on the practices and procedures relating to the prosecution of trademark applications. (available on the USPTO website).

34
Q

What is TRIPS?

A

(1994) Bars registration of a mark for wine or liquor if the mark identifies a place other than th origin of the goods.

35
Q

What is TLTIA?

A

(1999) Simplified several requirements:
1. Applicant only needs one specimen, not three.
2. No longer need to state the manner in which it was used.
3. 6 month grace period for filing a renewal for a trademark registration.

36
Q

What is the Federal Trademark Dilution Act?

A

Protects against dilution of famous marks by preventing use of a confusingly similar mark even of unrelated goods. No NIKE donuts.

37
Q

What is the Anticybersquatting Act?

A

It was signed into law in late 1999 and is intended to protect the public from acts of Internet cybersquatting.

38
Q

What is intrastate commerce?

A

Commerce done only within the state.

39
Q

What is a generic term?

A

Not truly a mark. It is a common name of a product, such as car, soap, or beverage.

40
Q

What is genericizing?

A

Marks that are so widely used they lose their distinctiveness. Marks used as nouns and verbs.

41
Q

What is a descriptive mark?

A

It tells something about the product or service offered under a mark by describing some characteristic, quality, ingredient, function, feature, purpose, or use of th eproduct or service. (Oatnut). They are descriptive and not registrable.

42
Q

What is Secondary Meaning (or acquired distinctiveness)?

A

Descriptive marks cannot be registered until secondary meaning is shown:

  1. Five years of continued use.
  2. exclusive use of the mark.
  3. So much branding, people immediately identify it with the trademark.
43
Q

What is a laudatory term?

A

best, extra, and super. Not registrable without proof of secondary meaning.

44
Q

What is a suggestive mark?

A

It suggests something about the goods or services under the mark but does not immediately describe them. It is registrable without proof of secondary meaning or distinctiveness.

45
Q

What is an arbitrary mark?

A

It is a commonly known word that is applied to an unfamiliar product. While the terms are found in the dictionary, they have no relevance when applied to the goods in question and are thus arbitrary. Arbitrary marks are registrable without proof of secondary meaning.

46
Q

What is a fanciful, or coined, mark?

A

Marks that are invented and have no dictionary meaning.

47
Q

What is a trade name?

A

Is one used to identify a business or company and its goodwill, while trademarks and service marks identify goods and services. Trade name cannot be trademarked, unless it serves to identify and distinguish goods and services.

For example, when Hallmark places its business name on its letterhead, such use is an unregistrable trade, or business, name. However, when the hallmark and crown mark appear on greeting cards, it is being used as a trademark.

48
Q

Can you trademark alphanumeric symbols?

A

Yes, as long as they’re not descriptive only. (CNN)

49
Q

Logos that are purely ornamental or are mere background material may not be protectable?

A

Correct.

Intellectual Property (2 decks)

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