Trademark law Flashcards
Trademark
Any distinctive word, phrase, symbol, or design adopted for the purpose of identifying the origin of goods being offered for sale. Benefits consumers by acting as a symbol enabling them to identify goods or services that have been satisfactory in the past and to reject those that have been unsatisfactory. A trademark also motivates businesses to maintain or improve the quality of their goods or services over time to reap the benefits of a well-earned public trust in a mark.
“source identifier”
requirement to be legally protectable. Meaning that when a substantial number of buyers see or hear the mark, they associate it with a particular source.
Secondary meaning
Another requirement for a mark to be legally protectable. This means that although a term may have some original meaning on its own, when a lot of customer see or hear it, they mentally associate it with a particular seller.
Generic
Word or phrase used to describe an entire class of goods or services rather than a particular seller’s version of a good or service. Can never be protectable when used in their generic sense.
Descriptive
merely identifies a characteristic or quality of a product or service, like color, odor, function, dimensions, or ingredients. Cannot protect a descriptive term unless that seller can produce evidence proving that the term has acquired a secondary meaning.
Suggestive
suggests, rather than describes some particular characteristic of the goods or service to which it applies and requires the consumer to exercise the imagination in order to draw a conclusion as to the nature of the goods and services. Can be a protected mark even without actual proof of acquired secondary meaning because courts view suggestive terms as being “inherently” distinctive.
Arbitrary or fanciful
Bear no relationship to the products or services to which they are applied. These are protectable without proof of meaning. Kodak, Xerox and Exxon. Terms that were generic or descriptive in their original meaning, but that are used as marks in connection with the sale or product or services are arbitrary marks. Inherently distinctive that they are necessarily protectable.
Intent to Use (ITU)
registration applications for those who have not yet made a substantial interstate use of a mark but intend to do so in the reasonably hear future. Owner ultimately receives a federal registration and there is a contests over who was the first to register, the priority date is the date of which the ITu was filed rather than the date on which the regular application was filed.
Confusion
In most infringement caes, the plaintiff mark owner has the burden of proving that the defendant’s mark is so similar to the plaintiff’s that the defendant’s use will product a likelihood of confusion in buyers’ minds as to the true origin of the goods or service. Even if the evidence does not prove that the defendant’s use of the same ore a confusingly similar mark is likely to cause customer confusion as to actual source, there may still be trademark infringement if the evidence shows that consumers are likely to be confused about affiliation, sponsorship or endorsement.
Genericide
In addition to the fact that a generic term cannot be protected in the first place, a formerly protectable mark can become generic through usage over time. Many people use the term genericide to refer a merk’s loss of protection by becoming generic.
Anti-Dilution Statutues
in the FTDA, congress itemized 8 factors that show a mark is famous. 1.) the degree of inherent or acquired distinctiveness of the mark 2.) the duration and extent of use of the mark in connection with the goods or services with which the mark is used. 3.) the duration and extent of advertising and publicity of the park. 4.) the geographical extent of the trading area in which the mark was used 5.) the channels of trade for the goods or services with which the mark is used 6.) the degree of recognition of the mark in the trading aras and channels of trade used by the marks’ owner and person against whom the injuctions is sought. 7. the nature and extent of use of the same or similar marks by third parties. 8.) whether ther mark was registered.
Anti-Cybersquatting Consumer Protection Act
A cybersquatter is someone who registers an internet domain name 1.) that is the same as or confusingly similar to someone else’s protected trademark 2.) where there is a bad faith intent to commercially exploit the trademark 3.) the likely effect is to either cause confision or cause dilution.
