Trademark law is one of the three branches of Intellectual Property Law. The other branches are Patent Law and Copyright Law.
As an overview, patent law guards new inventions that can be valuable by giving the owner or patentee the right to keep out other individuals from using the said invention in their enterprises. Copyright law, on the other hand, protects the rights of artists for their creation of their works, be it a book, film, or an artwork from any unauthorized imitation of the said work. Copyright law, however, has nothing to do with the idea of the creation or work; it merely protects its expression.
Meanwhile, trademark law protects marks or names that are in connection with the merchandise or product. A trademark can be a word, color, sound, icon, image, phrase, or way of packaging that is acquired and utilized by an organization or corporation for easy recognition of their merchandise and services that will set them apart from other corporations or organizations. Services and not product merchandise, however, are identified by a service mark (which is similar to that of a trademark).
From a historical point of view, trademark law was pioneered by the Englishmen during the 13th century to guard the customers from spurious merchandise. In the late 19th century, the governments of Britain and the United States of America established Trademark agencies that controlled the registration of trademarks.
Basically, trademark law thwarts illegal use of a product-identifying mark or sign and guarantees consumers that the product they are purchasing are made by the same producer and are not poorly manufactured counterfeit products. The law at the same time also promises the producer or manufacturer that imitators will not reap the financial rewards. It also protects the reputation of the real manufacturer.
Trademark fundamentally protects consumers from being duped. It guarantees liberal competition by defending the benevolence of the person or company who possesses the mark. It essentially concerns itself with the buffet of services and commodities.
Trademark law practically has an effect on creative artists as well (writers or authors, designers, etc). It endows creative artists and their business associates broad protections from any unlawful use of a trademark as long as it does not misled the public that the use was endorsed by the owner of the trademark.
Trademark law and the art world connect through titles, trade dress, domain names, literary characters, and mishandling of the name of an author.
Titles are at times protected under unjust competition and trademark laws. It is not protected by the copyright law. Protection of a title is granted when it accomplishes a secondary meaning. Secondary meaning is similar to that of the titles commercial appeal. Titles must also be popularly known to meet the criteria. Usually, titles of series are great trademark contenders. Also, titles in one merchandise can be protected in another type of merchandise. Lastly, one-shot titles are not consequently allowed to trademark protection.
Trade dress, in trademark law, is merchandise's recognizable image. It is actually the merchandise's characteristic color, shape, image, packaging, or a combination of these factors that the consumers will easily connect with a certain source.
Domain names are web addresses consigned to certain computers on the internet. These names are extensively utilized by companies in connection with entertainment, information, and publishing. Any use of the domain name without permission is a violation of the trademark right of the owner. Fortunately, current legislations have made battling unlawful trademark users.
In connection with literature, sometimes a story or a novel's character is so appealing that it actually takes a life of its own outside its original medium. Consequently literary characters may become linked with a certain product. With this occurrence, the literary character can be sheltered by unfair competition and trademark laws, even though it may not protected by copyright anymore.
Trademark law also has sanctions over the mishandling of an author's name. According to unfair competition laws any author can take legal action against bogus source designation or false advertising if their role to a certain literary piece or work is imprecisely depicted. Another violation of the right of an author is an illegal unauthorized modification of their work.
In a nutshell, the trademark law is concerned about corporate integrity and educated purchasing decisions. It promotes the progress of the society's economy.
Patents and Trademarks
When an entity violates an absolute right attributed to a registered trademark without proper approval from the owner of the trademark, then the said entity may be charged with trademark infringement. A trademark which is similar or perplexingly the same as your trademark in connection with the goods or services you are promoting then an “infringement” occurs.
An Overview on Trademark Law
Any federal registered trademark may be safeguarded under the Lanham or Trademark Act. The Lanham Act is a law encompassing the federal ruling on trademark law in the United States. The said act forbids actions which include dilution of trademark, bogus advertising, and trademark infringement.
Possibility of a Trademark Infringement Case
A trademark infringement is possible, if you will be able to prove that there is a “possibility of confusion” between your trademark and the purportedly infringing mark. Such possibility of confusion will be determined through a “trademark analysis,” wherein the following items will be analyzed:
* The structure of the mark, both interior and exterior.
* The connotation of the mark. The meaning can be explicit or implied.
* How the mark is pronounced will be reviewed as well.
* The relation of the infringing mark to the goods or services will also be analyzed.
* The impression of the public will also be assessed. Actual test impressions on the consumers may be done.
Trademark Infringement Penalty
The common penalty being given to a party who has been proven guilty of trademark infringement is “injunction.” Injunction is a court regulation wherein it orders the party to avoid doing certain actions such as infringing marks. Contrary to the common belief, injunction is not a monetary judgment.
There are instances that “monetary relief” is bestowed to a winning party. Such monetary respite may include the profit lost by the defendant, the claimants’ sustained damages and the over-all cost of action.
“Trademark dilution,” can be sought by plaintiffs with well-known trademarks. By doing so, the infringed mark will not be further utilized. There are factors to consider for a trademark to be specified as “famous” before an infringed mark will be blurred or tarnished.
Ways to Avoid Trademark Infringement
If you have been accused of trademark infringement, here are some recommended actions to undertake:
1. Do not copy. If you will be making a trademark, make sure that you do it with immense originality. It must be unique.
2. Search. The uniqueness of your trademark may be verified by doing “trademark search.” Primarily, you can scout for used trademarks on the internet. There are a lot of “trademark search website” which can help you on your endeavor. Secondly, spare some time to visit the Patent and Trademark Depository Library or PTDL to browse for possible similar trademarks that you have. The said library is situated to almost every state.
Another trademark search option is to consult with a trademark lawyer that may also be of help with your trademark search. Your lawyer may conduct a “common law search.” It is a type of trademark search where government records are being checked to see if you have a similar trademark.
Ways to Protect Your Trademark
No one wants to be involved in the rigorous process of court proceedings. Hence, as a plaintiff, you need to perform actions to secure your “mark.”
1. Register. It is highly recommended that you undergo a federal trademark registration. With a duly federal registered trademark, you are guaranteed to receive optimum protection with regards to your “mark.”
2. Maintain. You need to maintain your trademark. It is best to use your trademark on all promotion materials such as websites, brochures or even advertising over the television. To inform everyone that a good or service is a registered trademark, use the register symbol "®". However, if the process of registration is not yet completed, then you can temporarily use the symbol TM for products or SM for services.
There is a price for copying someone else’s original work. It is not simply injunction or paying monetary damages to the plaintiff that can happen to you. There are more upsetting instances that can happen to you. You or your company’s reputation is at stake with trademark infringement.
Who would then trust someone who committed trademark infringement* No one.
Patents and Trademarks
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