Overview of Trademark Law

Comments (20)


Trademark law gives companies the exclusive right to use a given name or design, called a " mark, " for the purpose of identifying the source the of that company's goods or services. Trademark law is an incentive-based system. Because it gives companies the exclusive right to use a mark in connection with certain goods or services, the company can create a brand that is recognizable by the consuming public. That trademark would be associated with and incorporated into every advertisement the company runs for its goods or services. Repetition of those advertisements containing the trademark causes consumers to associate the mark with the goods and, with enough repetition, consumers buy the goods.

A brief, but related, digression. We all know that if you see a product advertised frequently enough, the product will sell. You might even be one of the people who buys the product. The thinking process by which you reached the decision to buy the product is not an intellectual, logical process. It's a function of the way the human mind works. Continually hearing a repeated message makes the message more familiar, more real, and, eventually, more true. As the adage says, " even the boldest lie becomes the truth if you scream it loud enough and long enough. " I call this the " Lie = Truth " Adage. Sadly, I frequently encounter the " Lie = Truth " Adage in litigation. I also know of some politicians and terrorist masterminds who are experts at exploiting this fact of human nature.

Back to trademarks. The advertising departments at most companies know the " Lie = Truth " Adage can be very successful in advertising. The cynic would pump his fist in the air yell " Down with the corporations, and power to the people! All the corporations care about is taking our money at all costs! " While we can point to some recent examples that might make it challenging to argue against this viewpoint, as to the overwhelming, vast majority of companies, that view simply cannot be supported.

Trademark law creates very strong incentives for companies to make the highest quality product possible and to advertise their merits and attributes accurately. Aside from the fact that companies invest anywhere from thousands to millions of dollars in their trademark(s), all it takes is one bad product line to tarnish a company's image in the minds of the consumers who buy the products. Both of these factors hit companies where it hurts them most: in the pocketbook. So, while companies clearly have to perform a balancing act of creating a high quality product, keeping costs down, and pulling in as many purchasers as possible, they have very strong incentives to create a quality product that they will associate with their trademark.

To be eligible for any level of trademark protection, a mark must be " distinctive " and not merely " descriptive " of the goods or services. Whether a mark is distinctive and " how " distinctive or strong the mark is can be determined by a sliding scale. Marks can be (1) fanciful; (2) arbitrary; (3) suggestive; (4) descriptive; or (5) generic. Whether a particular mark is protected by trademark law depends on the strength category into which it falls.

A fanciful mark is one that is invented for the sole purpose of being a trademark. For example, EXXON is a fanciful mark. It is a word that does not exist in the English language and was created only for the purpose of identifying the oil and gas company.

An arbitrary mark is typically an existing word that is arbitrarily applied to a product or service that has nothing to do with the word. For example, the mark APPLE as applied to sales of computers.

A suggestive mark is a mark that suggests a quality or characteristic of the goods or services. Suggestive marks require some level of imagination to bridge the connection between the mark and the product. For example, the mark PENGUIN as applied to refrigerators.

A descriptive mark is a word that merely describes a quality or characteristic of a product. Descriptive marks are not entitled to trademark protection unless they have obtained " secondary meaning " under the trademark law. An example of a descriptive mark would be LIGHT to identify a lightweight notebook computer.

A generic mark simply identifies by name a particular product. Generic marks are never entitled to trademark protection. An example of a descriptive mark would be MODEM in connection with modem sales. If trademark protection were allowed in this instance, the company could essentially remove the word " modem " from the English language.

About the Author

Mr. Fasthoff represents corporate clients and individuals in the fields of commercial litigation; entertainment litigation; intellectual property litigation; arts law; technology law; and a wide variety of other business litigation matters.

Comments

animal lover 02.08.2007. 00:41

What are my options for protecting an idea? Okay, so I have come up with a really cool idea that we would like 'patent' or whatever.

I need to know what the options are. I know we could trademark a name - working on that one. But I need to know how to protect an idea so it can't be used by someone else. Can just an idea be patented, even if it is not an actual 'thing' yet?

How does all this work? Also, are there other things besides patents and trademarks?

Any help would be appreciated. Thank you!

animal lover

Admin 02.08.2007. 00:41

It's tough to protect ideas. The law starts with the general proposition that "Ideas are free as the air" (a quote from Thomas Jefferson, the first head of the patent office).

A patent is a good choice if you have an invention or businesses method that is new and "non-obvious"- a legal phrase meaning no one other people dealing with similar inventions would have thought of your idea. The trick with a patent is that you have to convince the government to give one to you. It can be expensive (patent lawyers in NYC can make $500 an hour)!

A non-disclosure agreement or other contract is good if you want to restrict the idea's disclosure. Make sure anyone you tell the idea to will agree that it is your property and that they will keep it confidential.

Check out the book "The Pocket Lawyer for Filmmakers" if you want a good, easy to understand overview of non-disclosure agreements and other idea protecting contracts.

Admin

Bozboy 18.04.2013. 09:17

What are the potential legal implications of using and editing graphical images? I already have Copyright, Plagiarism and registered trademarks. I know there is more but I cant find them anywhere on the internet. Thank you in advance

Bozboy

Admin 18.04.2013. 09:17

.To my knowledge there are no more because you have covered the main ones.

Those three would cover any copying issues.

However any Copyright Infringement can ONLY be determined by a Court of Law
that only deals with Copyright writs.

Several criteria have been laid down over the years as a rule of thumb with
what is and what is not Copyright Infringement.

http://www.copyright.gov/fls/fl102.html

http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/

Admin

ecmami451 26.10.2006. 14:53

What kind of business laws would you need to know about to be in the marketing field? Besides trade dress, copyright laws, and trademarks..................

ecmami451

Admin 26.10.2006. 14:53

You've listed some of the major laws affecting advertising. The link below is a good and short overview of federal laws affecting advertising. Summary:

This report provides a brief overview of federal law with respect to six selected advertising issues: alcohol advertising, tobacco advertising, the Federal Trade Commission Act, advertising by mail (including junk mail), advertising by telephone, and commercial e-mail (spam). There are numerous federal statutes regulating advertising that do not fit within any of these categories. As random examples, the Food, Drug, and Cosmetic Act requires disclosures in advertisements for prescription drugs; the Truth in Lending Act governs the advertising of consumer credit; and a federal criminal statute makes it illegal falsely to convey in an advertisement that a business is connected with a federal agency.

Admin

VSGIRL76 27.03.2009. 12:14

How to sell P90X workout videos on Ebay without being kicked off? 2 days ago I was trying to sell (Ebay) my P90X Videos that I had purchased to get some money back? A couple of hours before it was to end the auction was removed by the rights owner saying it was not authentic. It is very authentic!!! Not sure what to do. Others are selling theirs and not being kicked off. What are they doing so special that I'm not. HELP! (By the way P90X kicks #@$)

VSGIRL76

Admin 27.03.2009. 12:14

Ebay has rules for sellers that must be followed. Here is a copy of the seller rules from ebay that should help explain things better. I have been selling on ebay for over two years and the companies who own the patent rights to any product have the right to tell ebay to take down any listing they feel is fake or not authentic. It has happened to me and I had to prove to ebay and the company in question that the item was really theirs and once I did they allowed the listing and I sold the item and the buyer was contacted by ebay and asked if they were happy with the sale and if they felt the item was real. The buyer told them she was on both issues.


Rules for Sellers ? Overview
eBay's policies are rules and guidelines that help to create a safe, fair and enjoyable trading environment for all eBay members. As a seller, you are responsible for reviewing and understanding eBay?s selling policies, as well as all applicable laws and regulations as outlined in the User Agreement.

Learning about eBay's selling policies before you list an item will help you to avoid unintentionally breaking rules. eBay?s selling policies are updated to respond to marketplace, Community and security issues, so it is important to check them regularly for changes.

Violations of these policies may result in a range of actions, including:

Listing cancellation

Limits on account privileges

Account suspension

Forfeit of eBay fees on cancelled listings

Loss of PowerSeller status

Every seller must know and follow:

Rules about Prohibited and Restricted Items ? What items can and cannot be listed

Rules about Intellectual Property ? Items and listings that have the potential of violating certain copyrights, trademarks, or other rights. Intellectual property owners can report listings as part of eBay?s Verified Rights Owner (VeRO) Program.

Rules for Listings ? Actions that are not allowed in listings

Rules for Accepted Payments ? Forms of payment that sellers may accept from buyers

In addition to the above rules, here are some additional policy violations not permitted on eBay:

Seller Non-performance ? Sellers must honor the transaction contract. Sellers cannot fail to deliver an item for which payment was accepted, significantly misrepresent an item by not meeting the terms and item description outlined in the listing, or refuse to accept payment for an item at the end of a successful sale.

Shill Bidding ? Sellers must not bid on their own item, or have family members, roommates or employees bid on their item.

Unpaid Item/Final Value Fee Credit Abuse ? Sellers may not file for a Final Value Fee credit on a transaction where the buyer paid for the item.

Tax Policy ? Sellers must pay relevant fees and taxes.

Both buyers and sellers cannot interfere with a transaction or offer to buy or sell listed items outside of the eBay site (see Rules for Everyone ? Overview).


To report a policy violation:
Locate and review the policy page that deals with the violation.

Click the Report link at the bottom of the page. For example, see Excessive Shipping and Handling policy.

Enter the item number(s) of the listing that you want to report.

Click the Send button to send your message to eBay Customer Support.
You can also report a violation by clicking the Contact Us link on the left side of any Help page, selecting Listing Violations and choosing the appropriate topics.


Note: Only report a case once. Multiple emails about the same case slow an investigation.

After your report is received:

eBay will consider the circumstances of an alleged policy violation and the user's trading record before taking action.

Disciplinary action may result in listing cancellation, limits on account privileges, account suspension, forfeit of eBay fees on cancelled listings, and loss of PowerSeller status.

If a complaint can't be proven with certainty, eBay may take no action.

Due to privacy issues, it's not possible for eBay to discuss the results of an investigation.

Posts made in eBay?s Want It Now area must also comply with eBay policies. For more information, see the Want It Now Policy page.

To learn more, you can take the tutorial on Shill Bidding and other Trust and Safety tutorials.

Admin

National Bolshevik 23.05.2011. 03:49

How do you get a symbol copyrighted or trademarked? Array

National Bolshevik

Admin 23.05.2011. 03:49

Technically, trademarks and copyrights arise automatically. Common law trademark rights start when you use the symbol in connection with the commercial sale or other offering of goods/services. Copyright rights arise automatically when you create an artistic work.

If you want additional advantages, you can file for a trademark or copyright registration, depending on the symbol and what you are doing with it. If you are using the symbol in connection with providing some goods or services, then you can apply for trademark protection. An overview of trademarks and the filing process can be found here: http://www.uspto.gov/trademarks/index.jsp

If your symbol is new and has some measure of creativity/artistry, then you can file for a copyright registration. Go to www.copyright.gov for the overview and forms.

Admin

m16mcm16 07.03.2008. 00:48

My ebay item sold but has not been paid for, can i cancel it? someone used buy it now on my item but has not paid. Can i cancel this?

m16mcm16

Admin 07.03.2008. 00:48

need to read this from ebay site
Search the Help pages (Does not search for items or products)
Tips
What are the rules and policies for selling items on eBay?

eBay's policies are rules that help to create a safe, fair and enjoyable trading environment for all eBay members. As a seller, you are responsible for reviewing and understanding eBay?s selling policies, as well as all applicable laws and regulations as outlined in the User Agreement in Rules for Sellers Overview.

Policies and guidelines specifically related to selling an item involve:

*

Prohibited and restricted items ? What items can and cannot be listed. eBay?s restrictions are often based on country and state laws, including copyright or trademark laws. However, many restrictions involve the sale of controversial or sensitive items and are not necessarily prohibited by law. The limitations are a result of input by the eBay Community. Before you list your item, it is a good idea to review eBay's Prohibited and Restricted items policy to see if it is on the list of what may not be sold on eBay.
*

Listing practices ? Actions that are not allowed in listings. To promote a safe, fair and enjoyable trading experience, eBay has established a set of Community standards and guidelines for listings and other Community content. These include policies restricting the use of profanity, HTML and JavaScript, and links. eBay?s listing policies also provide guidelines on how certain items may be listed and described. For example, using brand names or other words inappropriately for the purpose of attracting buyers to a listing (called keyword spamming) is not allowed. Listing policies also include prohibiting practices that would circumvent eBay fees. You should familiarize yourself with eBay's listing policies before posting an item.
*

Completing the sale ? Practices that are not allowed involving transactions. For example, accepting payment and sending an item that is significantly different from the item described in the item listing is not allowed. For policy and examples, see Seller Non-performance.

Violation of eBay policies can result in a range of actions, including:

*

Listing cancellation
*

Forfeit of eBay fees on cancelled listings
*

Limits on account privileges
*

Loss of PowerSeller status
*

Account suspension

When policy violations occur, eBay emails the seller, as well as bidders, that a listing has been ended. Learning about eBay's selling policies before you list an item will help you to avoid unintentionally breaking rules (including the law). eBay?s selling policies are updated to respond to marketplace, Community and security issues, so it is important to check them regularly for changes.

Admin

Richard 23.03.2012. 07:55

how to start self-employed contractor / consultant business? what paperwork and steps are involved?
need to start working this quickly as contract may need to be worked in a month.
what entity choices are available to consider as a self-employed contractor?

Richard

Admin 23.03.2012. 07:55

Whether you are a writer, an engineer, a consultant, or any number of other independent working positions, you are an independent contractor. This means you are self-employed. You should take the steps to set up a business entity. Here's why you should do that and the tasks you need to start your business.
Decide on Your Business Legal Type
The number of legal types is confusing. This list gives you an overview of each and directs you to more information about each type. If you are starting as an independent contractor or freelancer, consider forming a limited liability company. If you are making a product and planning on hiring employees, you might want to consider incorporating. If you are working in a professional practice - dentistry, law, accounting, for example - you might want to set up one of the partnership entities. If you are a solo contracor performing a service, you might want to start as a single-member LLC. Learn more about the legal types of businesses so you can talk to your attorney about which is best for you.
Apply for a Tax ID Number
Even if you don't plan on having employees in your business, you should apply for a tax ID number (also known as an Employer ID Number). This number is a unique number for your business and it helps establish you as a business entity. Register your Business Name,
When you have selected a business name, don't rush out and buy business cards and stationery yet. First, check to be sure no one else is using that name. Then, consider trademarking the name if it is unique. Finally, you may need to file a fictitious name (trade name, or d/b/a) statement if your business name is different from the name of your company. Learn more about these steps in registering your business name here. Set up Your Business Checking Account
Getting a business checking account will help establish that separate business entity, so it is clear to the IRS - and anyone else who cares - that you and your business are separate entities. Here are some considerations in setting up that checking account.

Admin

xaznjazonx 30.03.2009. 00:04

Selling on eBay, but on it, it says not to be sold seperately? I'm selling this video game i found in my garage on eBay. But before that, i want to know if I CAN sell it because on the disk, it says "FOR SALE WITH MEGAMEDIA BUNDLE ONLY. NOT TO BE SODL SEPARATELY." Can i still sell it on eBay or will I get in trouble? I am selling Mech Warrior 2 31st Century Combat for windows 95 and all I have is the disk and nothing else.

xaznjazonx

Admin 30.03.2009. 00:04

You should check with eBay if there are any rules against selling this item if your concerned. I sell on ebay and have been for over two years now and they do have rules about selling on ebay that need to be followed, The person above who said "you can sell anything" is wrong!

Here is a copy of the "sellers rules" from ebay:

Rules for Sellers ? Overview
eBay's policies are rules and guidelines that help to create a safe, fair and enjoyable trading environment for all eBay members. As a seller, you are responsible for reviewing and understanding eBay?s selling policies, as well as all applicable laws and regulations as outlined in the User Agreement.

Learning about eBay's selling policies before you list an item will help you to avoid unintentionally breaking rules. eBay?s selling policies are updated to respond to marketplace, Community and security issues, so it is important to check them regularly for changes.

Violations of these policies may result in a range of actions, including:

Listing cancellation

Limits on account privileges

Account suspension

Forfeit of eBay fees on cancelled listings

Loss of PowerSeller status

Every seller must know and follow:

Rules about Prohibited and Restricted Items ? What items can and cannot be listed

Rules about Intellectual Property ? Items and listings that have the potential of violating certain copyrights, trademarks, or other rights. Intellectual property owners can report listings as part of eBay?s Verified Rights Owner (VeRO) Program.

Rules for Listings ? Actions that are not allowed in listings

Rules for Accepted Payments ? Forms of payment that sellers may accept from buyers

In addition to the above rules, here are some additional policy violations not permitted on eBay:

Seller Non-performance ? Sellers must honor the transaction contract. Sellers cannot fail to deliver an item for which payment was accepted, significantly misrepresent an item by not meeting the terms and item description outlined in the listing, or refuse to accept payment for an item at the end of a successful sale.

Shill Bidding ? Sellers must not bid on their own item, or have family members, roommates or employees bid on their item.

Unpaid Item/Final Value Fee Credit Abuse ? Sellers may not file for a Final Value Fee credit on a transaction where the buyer paid for the item.

Tax Policy ? Sellers must pay relevant fees and taxes.

Both buyers and sellers cannot interfere with a transaction or offer to buy or sell listed items outside of the eBay site (see Rules for Everyone ? Overview).


To report a policy violation:
Locate and review the policy page that deals with the violation.

Click the Report link at the bottom of the page. For example, see Excessive Shipping and Handling policy.

Enter the item number(s) of the listing that you want to report.

Click the Send button to send your message to eBay Customer Support.
You can also report a violation by clicking the Contact Us link on the left side of any Help page, selecting Listing Violations and choosing the appropriate topics.


Note: Only report a case once. Multiple emails about the same case slow an investigation.

After your report is received:

eBay will consider the circumstances of an alleged policy violation and the user's trading record before taking action.

Disciplinary action may result in listing cancellation, limits on account privileges, account suspension, forfeit of eBay fees on cancelled listings, and loss of PowerSeller status.

If a complaint can't be proven with certainty, eBay may take no action.

Due to privacy issues, it's not possible for eBay to discuss the results of an investigation.

Posts made in eBay?s Want It Now area must also comply with eBay policies. For more information, see the Want It Now Policy page.

To learn more, you can take the tutorial on Shill Bidding and other Trust and Safety tutorials.

Admin

adventureguy7 16.02.2009. 04:44

Best Answer! What is Sikhism about? A basic overview? What is Sikhism about? Just the important things.

adventureguy7

Admin 16.02.2009. 04:44

SIKHISM -

To understand Sikhism you have to understand Hinduism. Hinduism is not Christianity and Islam which are codified religions, and have a book and a prophet. Hinduism has originated from various rituals tribal customs and social life over the centuries. Hinduism has 1000?s of Gods and Goddesses and various diverse thoughts.

Predominant amongst these thoughts is a way of life called Sanatan Dharma which more than 60% of the Hindus follow, and this is generally mistaken as Hinduism, and the other thoughts are treated as offshoots of Hinduism. The real truth is that Hinduism means Sanatan Dharma AND all the other thoughts. Sikhism is but one of these thoughts.

Firstly, the British with their policy of divide and rule, and secondly, political turmoil and hatred between Hindus and Sikhs has put the idea of a separate identity in the mind of us Sikhs. Many of my co-religionists will say ? but we have different ideas as compared to Hinduism. Sure - I agree that we are different in ways but there are 50 ? 100 major different thoughts within Hinduism and we are BUT one of them.

Do you understand ? Whereas fundamentalist Sikhs we say that we are 1 amongst 7 great world religions the fact is that there are actually 4 great religions. One - Christianity has various branches - Catholic, Protestant, Methodist, Adventist, etc. Second ? Islam has various branches - Shia, Sunni, Ahmediya etc. There is Judaism and finally Hinduism ( which is a collection of various beautiful thoughts like Buddhism, Sanatana Dharma, Sikhism, Jainism, Arya Samajists, Vaishnav, Shaivaites Manbhum, Santhal etc )

So Sikhism is born out of Hinduism. Guru Nanak was born a Hindu, he was a traveling holy man who followed a custom of Sant Mat ( or Saint Tradition ) quite popular amongst saints those days. It was a thought he inculcated in his believers and told them to learn it. His believers were called Sikhs as Sikh means ? ?to learn? We had 9 more Gurus. Yes Guru Nanak also took some minor feedback from Islam but that is the nature of Hinduism ? to absorb from everyone.

KHALSA

Was created about 200 years later by the 10th Guru in 1699 to give Sikhs a unique identity and some more wonderful beliefs. The Guru's first 5 Khalsas were called Panj Pyaras. However this wonderful concept of Khalsa has been altered by Khalsas themselves.

Because almost every 'Khalsa' breaks his religious laws. Of the 5 K?s the Kesh ( hair and beard, eyebrows, body hair ) is shorn by a massive ( maybe 99 %, yes 99 % ) majority of the young 'Khalsa', weather they are in the UK or the fields of Punjab . Even the 'Khalsa's who keep the hair will reject 3 other physical symbols. For convenience sake - without batting an eyelid. Ask a religious 'Khalsa', - if you take so much trouble over maintaining your hair at the right length, do you keep ?the Kacha? ( large undergarment / drawers ) or do you wear a Calvein Klein brand of underwear. Do you keep ?the Kanga? ( comb ) of the right length or only a miniature Kanga ? for convenience sake ? The ?Kara? is convenient so almost everyone ( including I ) wear it.

There is nothing wrong with this though - a dynamic religion will not lay too much emphasis on rituals - it will change, progress and become stronger with time. That is why Sikhism is a great religion today

SIKH REHAT MARYADA - Closely connected to the concept of Khalsa is the Sikh Rehat Maryada - See how these archaic these rules have become.

Rule 1 - Cutting hair: Cutting hair is strictly forbidden in Sikhism. Sikhs are required to keep unshorn hair.

Already answered

Rule 2 - Intoxication: Consumption of alcohol, drugs, tobacco, and other intoxicants is not allowed. Intoxicants are strictly forbidden for a Sikh.

Answer - Sikhs are known to be the biggest drinkers in India - its literally a trademark stamp - Sikh and the bottle - and so what ?

Rule 3 - Adultry, having premarital or extra marital relationships : In Sikhism, the spouses must be physically faithful to one another.

Answer - This depends on the Dick versus the brain - and most men are ruled by their *****. I have the occasional romp in the hay with my wife's friend who is also a Sikh - so i guess Sikh women too dont care a damn for the Sikh Rehat Maryada.

Rule 4 - Blind spitituality- Superstitions and rituals should not be observed or followed, including pilgrimages, fasting and ritual purification; circumcision; idols, grave worship; compulsory wearing of the veil for women

Answer ? Partly true. A 5 ? 10 day trip ( depending on where you stay ) to Hem Kund Sahib is a pilgramage ? even if the hypocrytes choose to define this act

Rule 5 - Material obsession : Accumulation of material wealth is not encouraged in Sikhism.

Answer - see this absolute load of crap - What rubbish, what complete rubbish. Sikhs are famous for their entrepreneural instinct, and have made fortunes all over the world. Sikhs are amongst the most succesful immigrant

Admin

GorgeousTx Vote the fundies out 24.11.2007. 17:38

Is there any way to do a 'poor mans patent'? How can one protect and manufacture an idea for sale and protect your idea?

GorgeousTx  Vote the fundies out

Admin 24.11.2007. 17:38

Nolo Law is a website that's a good resource for DYI patents. Here's their overview. The website is in the source field below.

Understanding Patent Applications: To get a patent approved by the U.S. Patent & Trademark Office (USPTO), you have to do your homework before filing the application, carefully prepare the application, and file it. Then you have to convince the USPTO examiner to approve your patent. Learn the steps in the application process so you can prepare a thorough application that will win approval.

Admin

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