Trademark law is the legal system that governs the use of words, symbols, and phrases that identify a product or brand. It prevents other businesses from using marks that look similar or sound like an existing mark, unless they have permission from the trademark owner.
형사전문변호사Certain parodies of trademarks may be protected by the First Amendment, while others can be subject to trademark infringement claims.
Trademark Registration
A trademark identifies a product or service as coming from a particular source. It is a sign that a business meets certain standards of quality and control. A registered trademark gives its owner the legal right to prevent others from using the mark without permission, as well as the right to sue for infringement.
Trademarks can be words, symbols, logos and other designs. In addition, sound, scent and color may also be protected as trademarks. Trademark law does not require that a mark be registered to be protected under federal or state law, but registration can provide benefits, including priority for filing suit, statutory damages and attorneys fees in an infringement action. 형사전문변호사
The application process for a trademark is rigorous. It involves searching the USPTO’s trademark database for existing marks that might conflict with your new one, as well as completing an identity verification. Your attorney can guide you through each step to ensure that your trademark application is successful.
Almost any word, phrase or symbol can be protected as a trademark under state common law or federal statute, provided that it functions to distinguish goods or services and does not misdescribe the character, nature, or function of those goods or confuse consumers about the source. Some types of marks are automatically excluded from protection under the Lanham Act, including descriptive marks that have not acquired secondary meaning, surnames, and marks that describe geographical features or natural phenomena.
Trademark Searches 형사전문변호사
Trademark searches can be a useful tool for identifying marks that are similar to an applicant’s proposed mark. A similar mark may prevent a company from being able to register its trademark with the federal government because it could confuse consumers as to the origin of goods or services.
A trademark search is an examination of existing marks to determine whether a proposed mark conflicts with any already registered trademarks or pending applications, as well as common law trademarks, business names and domain name registrations. A comprehensive trademark search, conducted by an experienced lawyer, can provide invaluable insights into the potential risk associated with a proposed mark.
When searching for trademarks, it is important to be as specific as possible. Using the example of the words “PURE FLEX,” a trademark search with just those two terms may return 18,000 hits, whereas putting those words in quotes and searching for “PURE or FLEX” will narrow the search results. It is also helpful to try searching with different spellings and abbreviations, as well as foreign language equivalents.
A thorough trademark search is an important step before adopting a new name or logo for your business, product or service. A lawyer’s help in conducting this research can save you time and money in the long run, ensuring that your trademark is available for registration and that it won’t cause confusion with other established marks.
Trademark Licensing
Trademarks protect the unique attributes that promote particular commercial goods and services, such as brand names, logos and colors. Trademarks distinguish products from one company or seller from similar goods or services sold by others, and they are useful for consumers to identify the source of those products or services. The word “Nike,” the Nike swoosh, and the distinctive sound of a Harley Davidson motorcycle are examples of trademarks.
Trademark owners must exercise control over the quality of goods and services bearing their marks, or else they might lose their rights to those marks. Without adequate controls, trademark licensing issues may arise that could result in significant legal disputes for both parties.
A trademark licensing agreement is a contract between the licensor and licensee that grants the right to use a trademark for a specific set of goods or services. Typical provisions include, but are not limited to:
As with all contracts, it is important for a trademark licensing agreement to be in writing. It is also important for the licensor to conduct a full trademark search of its own prior to entering into a license agreement with another party. These searches should include a review of the USPTO’s database, all 50 states, DBA filings and other government records in order to determine that the licensor has exclusive rights to the mark being licensed.
Trademark Defense
Trademarks are words, symbols, phrases and designs used by businesses to identify their products and services. They may also include shapes, colors, sounds and fragrances. The purpose of trademark law is to prevent consumer confusion as to the source or quality of a product or service. Unlike copyrights and patents, trademarks do not expire after a fixed period of time, but remain valid as long as they continue to be used in commerce.
Trademark infringement occurs when someone uses a mark without permission from the owner of the mark. Defendants can raise several kinds of defenses to trademark infringement lawsuits, including non-infringement and affirmative defenses such as fair use and parody.
Non-Infringement
In most jurisdictions, the first defense to a trademark infringement claim is that the defendant’s mark is not similar enough to the plaintiff’s mark to create consumer confusion. The distinctions between marks are very fine, and it can be difficult to determine if a mark is sufficiently similar to another.
In addition to non-similarity, the other criteria for trademark infringement is that the mark must be distinctive. There are four categories of distinctiveness: arbitrary/fanciful, suggestive, descriptive and generic. The likelihood of confusion is not required for infringement claims based on arbitrary/fanciful and suggestive marks, but it must be present for claims based on descriptive and generic marks.