Trademarks are Distinctive Identifier for a business such as Words, Logos, Slogans, Sounds, Smells, or Designs.Federal Registration with United States Patent and Trademark Office (USPTO)
- Common Law Trademark is obtained through use in commerce, but it is highly recommended to register it with USPTO – United States Patent and Trademark Office.
- Benefits:
- Can bring lawsuit in Federal Court – Can save travel costs if infringer is based out of a different state.
- Attorney Fees are available.
- Statutory damages are available if the plaintiff can prove sale of counterfeit merchandise. (Someone selling Fockley’s while using Oakley name).
Types of Trademarks
- Generic – Name of a product (e.g., Books)
- Descriptive – Describes characteristic of product (Paperback Books)
- Suggestive – Name with a connection with product (Rainforest Books)
- Arbitrary – No connection with product (Thomson Reuters)
Suggestive and Arbitrary names are considered inherently different and easily protected, however Generic and Descriptive names need to gain a second meaning to gain protection. (iPhone)Rights of Trademark Owners
- Right to use the mark for their product indefinitely.
- Right to prevent others from using a substantially similar or confusing mark.
- Right to prevent dilution of famous marks even if unlikely to cause confusion.
