Chapter 9 Intellectual Property October 27th 2014 9 4 Trademarks Learning Objectives Understand what a trademark is Learn what can and cannot be trademarked Explore how companies protect trademarks from dilution and genericide Examine how the Internet poses new challenges to trademark owners Explore the tension between trademark protection and free speech Trademark Any logo mark sound or other identifying characteristic that signifies the unique origin of particular good or services Lanham Act Federal law protecting trademarks Can last forever and are not subject to the Constitution s limited time restriction All brands are trademarks but not all trademarks are brands Granted for a specific category of goods Go beyond simply a company s name or its logo Trade Dress Distinctive and unique look feel or shape of a product or service that signifies unique origin Service Mark Trademark for an entity providing services as opposed to goods Certification Mark or Certification Trademark Trademark representing a good or service meeting minimum standards established by owner of the certification mark Collective Mark or collective trademark Trademark representing membership in a group as established by owner of the collective mark Trademark Exclusions Lanham Act excludes a few categories from trademark registration mainly for public policy purposes o Trademarks cannot contain the U S flag any government symbol or anything immoral o Trademarks cannot be merely descriptive Geographic Indicator System whereby names for products especially foodstuffs are reserved exclusively for products originating form a particular region Trademark is valid as long as consumers believe that the mark is associated with a specific producer or origin o Genericide Former or claimed trademark indicating a general class of goods not eligible for trademark protection Trademark Infringement Occurs when someone uses someone else s mark either completely or to a substantial degree without the permission of the mark s owner o Law permits owners to sue infringers who use their marks to a substantial degree Trademark owner can protect a trademark through dilution o Dilution Use of a famous trademark in a manner intended or designed to cause tranishment of the mark Trademark Revision Dilution Act of 2006 To win a dilution case a trademark owner had to show that it had suffered actual economic damage from the dilution Trademark owners o Have to wait for the diluting mark to hit the market and be used in o Must be able to prove that they suffered economic damage from the commerce diluting mark Defenses for Trademark Infringement Companies or persons accused of trademark infringement have several defenses to rely on o Arguing that no infringement has occurred because the two marks are sufficiently different that consumers won t be misled o Fair use Right of the public under circumstances laid out in copyright and trademark law to use protected intellectual property without permission Second defense that can be used against trademark infringement o Lanham Act Prohibits the use of someone else s trademark when o First Amendment recognizes the use of parody comedy or satire as selling goods fair use Defenses for Trademark Infringement Cybersquatting or domain name squatting Practice of registering Internet domain names for the sole purpose of selling the name to its rightful trademark owner Anticybersquatting Consumer Protection Act Federal Law outlawing cybersquatting later sale o Only illegal if the domain name is registered to make a profit through o Not illegal if someone registers the domain name in good faith o First Amendment is a defense to cybersquatting
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