형사전문변호사 Trademark law protects words, phrases, symbols, logos, colors, and sounds that identify particular goods or services. It can also cover services themselves rather than products.
Rights in a trademark can be acquired by being the first to use the mark in commerce, or by registration with the USPTO. Descriptive marks may not qualify for protection until they acquire secondary meaning.
Trademarks serve as the source identifiers for goods and services, distinguishing them from those of others. They can be words, logos, sounds or even colors that identify a brand and its products or services. Just about every product and service that you interact with on a daily basis has a trademark. Many of those marks are registered with the U.S Patent and Trademark Office (the USPTO). While you do not need to register your mark to have rights in it, federal registration provides additional protections.
Trademark applications must meet substantive requirements for registration and cannot conflict with any existing marks. The USPTO determines whether an application meets these requirements in an analysis of the mark’s distinctiveness. A mark can be considered distinctive in either a generic sense, such as “comfortable clothing,” or an acquired distinctiveness sense, such as a mark that has developed a secondary meaning in the minds of consumers, such as “American Airlines.”
Trademark law states that exclusive rights in a trademark are awarded to the first party to use the mark in commerce. The most straightforward path to a federal registration is filing an “In Use” application, which requires that the applicant already be using the mark in connection with the goods and/or services listed in the application. Alternatively, applicants may file an “Intent to Use” application, which allows the applicant to state that it will begin using the mark in conjunction with its goods and services within 18 months of filing.
Trademark law seeks to protect a company’s brand identity and encourage competition in the market by preventing other businesses from using symbols, names or words that are too similar to those owned by another business. Trademark law in most jurisdictions allows the owner of a registered mark to prevent others from using marks that are too similar for consumers to understand what a product is or its source. This is why it’s so important to consider your potential competitors and the existing trademarks in your industry when selecting a mark for your company.
If you decide to use a trademark that’s too similar to an existing one, the trademark holder may sue your company for trademark infringement. A successful lawsuit will likely result in a court order requiring you to change your mark or pay compensation for damages.
Trademark infringement is generally based on the concept of “likelihood of confusion.” This means that your mark must be so similar to an earlier trademark and the goods or services associated with it that consumers will mistakenly believe the two products come from the same source. Courts look at a variety of factors to determine this, including how similar the marks are, how closely related the products or services are, whether there is any evidence of actual confusion by consumers and the defendant’s intent in adopting the mark.
Trademark dilution is not as well-known as trademark infringement, but it can be equally damaging to a company. Trademark dilution laws protect famous trademarks from others’ attempts to harm their reputation.
Trademark laws generally prohibit the use of marks or names that are too similar to a famous mark’s distinctiveness. This harm is often referred to as “blurring” or “tarnishment.”
However, it is not always clear when a mark’s distinctiveness has been diluted, and courts struggle to find the right balance between consumer confusion and protection of trademarks. This is partly because there is no direct survey method to measure when a particular association is likely to weaken a trademark’s recognition or value.
To qualify for dilution protection, a mark must be famous. This means that it must be distinctive, either inherent or acquired through use, and recognized by a significant portion of the public in the United States. Fame may not be limited to a specific market or product category in the United States, but must be nationwide (15 USC SS 1125(c)).
For example, if someone used the NIKE mark on pornographic movies, this would dilute the NIKE mark’s distinctiveness because it would make consumers associate the tarnished mark with a dirty industry. For this reason, dilution laws are typically only enforced against famous marks. Nonetheless, they are important tools in the arsenal of any trademark owner.
Trademark opposition is a legal proceeding before the Trademark Trial and Appeal Board, an administrative body that handles many different types of USPTO proceedings. It allows third parties to challenge a trademark application before it becomes registered.
Trademark applications are published for an opposition period that lasts 30 days (or longer if extensions are requested). Anyone who believes they would be damaged by the registration of the mark can file a Notice of Opposition during this time. If they have both standing and grounds, the TTAB will consider the opposition.
The opposition process is a lot like a lawsuit and can be expensive. Pleadings, discovery and even trial can all take years to complete. Unlike a civil trial, however, all the hearings in a trademark opposition are handled virtually.
Each party will submit a brief, arguing their case to the TTAB. After reviewing both sides’ arguments, the TTAB will issue a final decision that will be sent to each party and posted publicly online. If either party is unhappy with the registrar’s ruling, they can appeal it to the Intellectual Property Appellate Board.