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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.
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
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.
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
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
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.
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."
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.
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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