|
Trademark Law |
What is a Trademark or Service Mark?
A Trademark which relates to goods and a Service
Mark which relates to services can be any word, name, symbol,
device, or any combination of these objects that is used, or intended
to be used, in commerce. Trademarks is the term used to collectively
refer to what are technically trademarks and service marks. Trademarks
serve two primary purposes:
- Trademarks identify and distinguish either the goods or services of one manufacturer or seller from goods or services manufactured or sold by others.
- Trademarks indicate the source of the goods or services. Basically, a trademark is a brand name.
In most countries, trademarks are legally recognized and protected as an inherent feature of the marketplace and of consumer protection. Trademarks are legally recognized as contributing to the improvement of quality in goods and services.
Trademarks make it possible for the consumer to select the goods that meet his expectations. This forces other firms to to improve the quality of their own products to meet the demands of the consumer. Thus the trademark promotes raising the quality of production.
Trademarks must be registered in the country with legal authority to provide protection.
I recommend reading Trademark by Stephen Elias as an excellent source for more detailed information on trademarks.
Exactly What Does a Trademark or Service
Mark Protect?
Generally speaking, trademarks provide the following protection in
the courts:
- Identify one seller's goods and distinguish them from goods sold by others
- Signify that all goods bearing the trademark come from or are controlled by a single source
- Signify that all goods bearing the trademark are of an equal level of quality
- Are used as a prime instrument in advertising and selling the goods
Also, a trademark is symbol of the good will that a business has built up. Trademarks allow buyers to buy products that they have used and liked. It is really the good will that is represented in the trademark that is valuable. In order to tap into this positive feeling a recognizable trademark must exist, but the key ingredient is having a product or service that customers like.
What is Trademark Infringement?
A trademark is not what is infringed. What is infringed
is the right of the public to be free of confusion and the right of
a trademark owner to control his product's reputation.The trademark
laws exist to protect the consuming public from confusion while at
the same time, protecting the trademark owner's right to a non-confused
public. There are three common trademark infringements that pertain
to the internet: Cybersquatting, Dilution and Meta Tags.
Cybersquatting
Cybersquatting is the act of registering a popular Internet address,
such as a company name or the name of a famous individual, with the
intent of selling it to who the public would perceive to be the "rightful" owner
of that address.
Domain names have value. Commercial entities want to locate themselves on the Internet at an address where their customers can find them, and at addresses that can be remembered easily. Ideally, a company wants an Internet address at a second-level domain that matches its business name or the name of its products. That way, Internet users looking for the company may be able to guess the company's domain name. For example: www.company.com.
One form of cybersquatting involves speculators buying up a lot of well know domain names and then trying to sell them to the individual the general public would assume were the owners for outrageous markups.
Another form of cybersquatting is where a trademark might appear elsewhere in relation to Internet addressing. For example, unless you are a valid employee of Sony Corporation or your last name is Sony using this email address sony@nexchi.com or having a website address like www.nexchi.com /sony/ is also cybersquatting.
The Trademark Cyberpiracy Prevention Act of 2000 specifically prohibited cybersquatting by statute in the United States.
Meta Tags
The Ninth Circuit Court concluded that when a firm uses a competitor's
trademark in the domain name of its web site, users are likely to
be confused as to its source or sponsorship. Also, using a competitor's
trademark in the meta tags of a web site is likely to cause what
the courts have described as initial interest confusion.
These forms of confusion are exactly what the trademark laws are designed to prevent and would be banned by both the Trademark Cyberpiracy Prevention Act of 2000 and the Federal Trademark Dilution Act of 1995.
Trademark Dilution
Dilution is a variety of trademark infringement that protects famous
trademarks from situations where there is not a likelihood of confusion,
but where the defendant's use of the famous mark tarnishes the image
of the mark or blurs the distinctiveness of the mark.
- The degree of inherent or acquired distinctiveness of the mark
- The duration and extent of use of the mark in connection with the goods or services with which the mark is used
- The duration and extent of advertising and publicity of the mark
- The geographical extent of the trading area in which the mark is used
- The channels of trade for the goods or services with which the mark is used
- The degree of recognition of the mark in the trading areas and channels of trade used by the marks' owner and the person against whom the injunction is sought
- The nature and extent of use of the same or similar marks by third parties
- Whether the mark was registered under the Act of March 3, 1881, or the Act of February 20, 1905, or on the principal register.
Dilution is a theory that continues to grow and which is continually being defined and re-defined by the US courts. Recently the United States Supreme Court issued a decision where the Court held that in order to prevail the plaintiff must show actual dilution and not merely the likelihood of dilution.
The Federal Trademark Dilution Act (FTDA) became law in 1995 and can be used only by famous marks.
For further information on Trademark law and how it really is being used in the world of the internet, I recommend reading Trademark by Stephen Elias.