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TRADEMARK-A CLOSER LOOK

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To enable a better understanding of trademarks the following will be discussed:
1) The federal trademark law,
2) Registration benefits and procedures, and
3) Temporary protection and the protection symbols.

Lanham Trademark Act

The federal law that governs the acquisition, registration, use, and misuse of trademarks is the Trademark Act of 1946, as amended. Or, as it is more commonly called, The Lanham Trademark Act.

For a mark to be eligible for registration and protection (in some cases this law protects bona fide trademarks even if they have not been registered) it must:
1) Be used in interstate commerce (i.e., used in at least two states) or, be used in at least one state and one foreign country,
2) Be distinctive, and
3) Be shown to be first adopted and used by the person or entity desiring protection (this does not mean it has to be an original creation-identification of the mark with a product or service is the important criterion).

A mark is not eligible for registration if it:
1) Consists of or comprises deceptive or immoral matter, disparages or ridicules persons (living or dead), institutions, nationalities, etc.,
2) Consists of, comprises, or simulates the flag or insignia of any country, state, or municipality,
3) Consists of or comprises a living person's name, portrait, or signature of a deceased president of the United States while the widow is still alive, and
4) Consists of, comprises, or resembles existing registered marks.

Lanham Trademark Act
Principal and Supplemental Register

The Lanham Trademark Act provides for two registers called the Principal Register and the Supplemental Register. In short, the Principal Register is for a mark that is coined, arbitrary, fanciful, or suggestive-generally referred to as a "technical mark." Or, for marks that were not originally technical, but are regarded as "technical" because they have become specifically associated with a product by the public. All others would be registered on the Supplemental Register.

For example, if a video production company marketed tapes with the distinctive words "Carrot Video" as their trademark, the words would be registered on the Principal Register. However, if they used the words "Color Video" as their trademark, it would not be "technical" but merely descriptive. This mark would therefore be registered on the Supplemental Register. If these words became specifically associated to their product by the public in the future, "Color Video" could then be registered on the Principal Register.

Marks registered on the Principal Register have these legal benefits over unregistered marks. Registration would:
1) Create a presumption of ownership by establishing prima facie evidence of ownership. Prima facie evidence is evidence presumed to be true unless subsequently disproved by evidence to the contrary. In short, it would take litigation to enable someone else to use the mark,
2) Entitle the owner to sue in federal courts,
3) Allow the owner to use the notice of registration symbol (to be discussed shortly) which gives constructive notice (i.e., notice imputed by law) of ownership to prohibit willful appropriation of the mark by others, and
4) Restrict foreign imports with like trademarks.

Marks registered on the Supplemental Register have only these few legal benefits over unregistered marks. Registration would:
1) Entitle the owner to sue in federal courts,
2) Allow the owner to use the notice of registration symbol, and
3) Prevent others from registering the mark.

Lanham Trademark Act
Service, Certification, and Collective Marks

The Lanham Trademark Act also provides for the registration of certain special marks. A mark that is used to sell a service or to advertise a service and identify such and distinguish it from the service of others is called a "service mark." Marks that can be registered as service marks can be titles such as artist's names, band names, or character names. Also, other distinctive features of radio or television programs used to identify a service may be registered even if they, or the programs, advertise goods of the sponsor.  See Cross-links: NAME under "Trade Name," and "Name Rights."

The term "certification mark" means a mark used to identify the products or services of one or more persons other than the owner of the mark. This mark could certify regional origin, material makeup, quality, or other characteristics. Or, it could certify that the work or labor on the goods or services was performed by members of a union or other organization.

For example, a group of computer music programmers could protect CDs that contained their music by registering a certification mark and affixing that mark to all manufactured copies so as to identify them and distinguish their music from the "old fashioned" music played by humans.

Finally, a service mark used to indicate membership in a union, association, or other collective group or organization may be registered as a "collective mark."  See Cross-link: TRADE UNION.

Registration of Trademark

In many states trademarks may be registered with a state agency. State registration has some advantages:

1) It would establish prima facie evidence of ownership within the state. Prima facie evidence is evidence presumed to be…

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