| Author | Message | ||
     Essthreetee |
What are you stirring up???  Just asking...I don't understand the post... | ||
| Tramp |
(from "http://cyber.law.harvard.edu/metaschool/fisher/domain/tm.htm#1" ) 1. What is a trademark? A trademark is a word, symbol, or phrase, used to identify a particular manufacturer or seller's products and distinguish them from the products of another. 15 U.S.C. § 1127. For example, the trademark "Nike," along with the Nike "swoosh," identify the shoes made by Nike and distinguish them from shoes made by other companies (e.g. Reebok or Adidas). Similarly, the trademark "Coca-Cola" distinguishes the brown-colored soda water of one particular manufacturer from the brown-colored soda of another (e.g. Pepsi). When such marks are used to identify services (e.g. "Jiffy Lube") rather than products, they are called service marks, although they are generally treated just the same as trademarks. Under some circumstances, trademark protection can extend beyond words, symbols, and phrases to include other aspects of a product, such as its color or its packaging. For example, the pink color of Owens-Corning fiberglass insulation or the unique shape of a Coca-Cola bottle might serve as identifying features. Such features fall generally under the term "trade dress," and may be protected if consumers associate that feature with a particular manufacturer rather than the product in general. However, such features will not be protected if they confer any sort of functional or competitive advantage. So, for example, a manufacturer cannot lock up the use of a particular unique bottle shape if that shape confers some sort of functional advantage (e.g. is easier to stack or easier to grip). Qualitex Co. v. Jacobson Products Co., Inc., 115 S. Ct. 1300 (1995). Trademarks make it easier for consumers to quickly identify the source of a given good. Instead of reading the fine print on a can of cola, consumers can look for the Coca-Cola trademark. Instead of asking a store clerk who made a certain athletic shoe, consumers can look for particular identifying symbols, such as a swoosh or a unique pattern of stripes. By making goods easier to identify, trademarks also give manufacturers an incentive to invest in the quality of their goods. After all, if a consumer tries a can of Coca-Cola and finds the quality lacking, it will be easy for the consumer to avoid Coca-Cola in the future and instead buy another brand. Trademark law furthers these goals by regulating the proper use of trademarks. 2. What sources of law govern trademarks? Trademarks are governed by both state and federal law. Originally, state common law provided the main source of protection for trademarks. However, in the late 1800s, the U.S. Congress enacted the first federal trademark law. Since then, federal trademark law has consistently expanded, taking over much of the ground initially covered by state common law. The main federal statute is the Lanham Act, which was enacted in 1946 and most recently amended in 1996. 15 U.S.C. §§ 1051, et seq.. Today, federal law provides the main, and by and large the most extensive, source of trademark protection, although state common law actions are still available. Most of the discussion in this summary focuses on federal law. 3. What prerequisites must a mark satisfy in order to serve as a trademark? In order to serve as a trademark, a mark must be distinctive -- that is, it must be capable of identifying the source of a particular good. In determining whether a mark is distinctive, the courts group marks into four categories, based on the relationship between the mark and the underlying product: (1) arbitrary or fanciful, (2) suggestive, (3) descriptive, or (4) generic. Because the marks in each of these categories vary with respect to their distinctiveness, the requirements for, and degree of, legal protection afforded a particular trademark will depend upon which category it falls within. An arbitrary or fanciful mark is a mark that bears no logical relationship to the underlying product. For example, the words "Exxon," "Kodak," and "Apple" bear no inherent relationship to their underlying products (respectively, gasoline, cameras, or computers). Similarly, the Nike "swoosh" bears no inherent relationship to athletic shoes. Arbitrary or fanciful marks are inherently distinctive -- i.e. capable of identifying an underlying product -- and are given a high degree of protection. \ihuh. once again, it looks like tramp was, indeed, correct in regrad to trademarking a word or a name. anyone wanna quote their "advisors" to try to disprove both }me and Harvard Law on this? This is how organizations fall apart. when their "directors" 'take the word of' their closest advisors without researching facts, first. kinda like 'whitewater', but on a smaller scale. | ||
| Tramp |
also from harvard law: "If a party owns the rights to a particular trademark, that party can sue subsequent parties for trademark infringement. 15 U.S.C. §§ 1114, 1125. The standard is "likelihood of confusion." To be more specific, the use of a trademark in connection with the sale of a good constitutes infringement if it is likely to cause consumer confusion as to the source of those goods or as to the sponsorship or approval of such goods. In deciding whether consumers are likely to be confused, the courts will typically look to a number of factors, including: (1) the strength of the mark; (2) the proximity of the goods; (3) the similarity of the marks; (4) evidence of actual confusion; (5) the similarity of marketing channels used; (6) the degree of caution exercised by the typical purchaser; (7) the defendant's intent. Polaroid Corp. v. Polarad Elect. Corp., 287 F.2d 492 (2d Cir.), cert. denied, 368 U.S. 820 (1961). So, for example, the use of an identical mark on the same product would clearly constitute infringement. If I manufacture and sell computers using the mark "Apple," my use of that mark will likely cause confusion among consumers, since they may be misled into thinking that the computers are made by Apple Computer, Inc. Using a very similar mark on the same product may also give rise to a claim of infringement, if the marks are close enough in sound, appearance, or meaning so as to cause confusion. So, for example, "Applet" computers may be off-limits; perhaps also "Apricot." On the other end of the spectrum, using the same term on a completely unrelated product will not likely give rise to an infringement claim. Thus, Apple Computer and Apple Records can peacefully co-exist, since consumers are not likely to think that the computers are being made by the record company, or vice versa." so it would appear that, with OR WITHOUT the "apple" logo, it is, in fact, copyright infringement when the name is being used either on a similar product, or in concert with mention of a product, as in "Buell" and "Motorcycles" but then, I didn't work in the garment industry, so what do i know? | ||
| Essthreetee |
hahahaha...I understand the point of a Trademark, just not the point of the post...  | ||
| Tramp |
not 'stirring up, essthreetee: someone said that i was absolutely wrong a couple weeks ago, when I mentioned that it's trademark infringement to use 'buell motorcycles' on a shirt. I don't care, of course, as I routinely ignore trademark laws, etc. I like the shirt, but that's not the point. a badwebber told me that i was wrong in that assertion, and, for it to be infringement, it'd have to have the same shapes, colours, etc. around it, which I know not to be the case. the cat who accused me of being wrong used, as his defense, the fact that his 'wife told him so', and so I was thereby wrong. I wasn't, and I'm not. oops. i admit when i'm wrong, would that some others might. shades of the clinton administration. anyway, I posted this thread so I wouldn't be hijacking the thread a nice guy whose wife made him a very cool buell shirt for christmas. i felt badly about hijacking that thread. that was not the place. this is. (Message edited by tramp on December 31, 2005) | ||
| Tramp |
" Cochise Rating: N/A Votes: 0 (Vote!) Posted on Sunday, December 25, 2005 - 07:34 pm: -------------------------------------------------------------------------------- I'm not picking a fight, mind you, but in this case, The name Buell is used and the phrase American Motorcycles. For Buell to have a problem with it, it would most likely have the letters (tm) beside it. Also, it would need to have the oval thing around it. The patch Rusty on ATC uses, has a pegasus on it, but not the Buell Pegasus, which is OK. If he had an identical Pegasus, he would be sued. If the above sweatshirt had a Blue Oval and the phrase listed above, and made without permission, he could be sued for even wearing it. There are some funny things with name usages. " yep- real funny things. like people talking authoriatively about things they don't know about (Message edited by tramp on December 31, 2005) | ||
| Tramp |
"You should really pick up a book on trademark infringement law before citing this stuff. maybe listen to people who actually know what they're talking about." cochise' response: "You mean like Julie, who has about 20 years in the clothing industry and 10 in the copyright infringement side, and by that I mean, as a Menswear Buyer, and being in COURT with, Nike, Addidas, Tommy Hilfiger, Calvin Klein, Ralph Lauren, and not exactly behind the same desk. I know, she or I may not sound smart, but I trust her knowledge more than anybody else, apart from a lawyer on this sort of stuff." * * ooops. now you sound REALLY smart  | ||
| Mountainrider |
I just have one question. Who cares?  | ||
| Blake |
Sometimes, being right ain't the most important thing. But I could be wrong.  | ||
| Tramp |
-------------------------------------------------------------------------------- (taken from"http://www.bitlaw.com/trademark/devices.html" Example Trademark Devices Executive summary: A trademark is a device which can take almost any form, as long as it is capable of identifying and distinguishing specific goods or services. The best way to understand the types of devices available is through actual examples. The examples on this page are divided as follows: letters and words, logos, pictures, a combination of words and a logo, slogans, colors, product shapes, and sounds. For a discussion on whether the use of the trademarks on this page constitute trademark infringement, see the BitLaw page on Trademarks and the Internet. Letters and words: A word or other groupings of letters is the most common type of mark. Examples include: APPLE SILICON GRAPHICS NETSCAPE IBM NBC golly! a simple word (ie name of a company)can be costrued as a trademark, all by iteslf, regardless of any attendant ovals, shapes, colours, etc. but then, what does old tramp know, anyway....}} | ||
| Tramp |
Mountainrider: i have just one answer: I care. how about if i start a little tirade telling you how you're worng about something. i can guarantee you'll leap at the opportunity to right that wrong. that's all i'm doing here. a self-righteous "individual" (term loosely used) smugly asserted that i was wrong about something, over and over. I was, in fact, correct. i'm just clearing the air, which isn't such a babyish thing from where I'm standing. If it were you in my shoes, you'd want to clear it, too | ||
| Cochise |
a self-righteous "individual" (term loosely used) smugly asserted that i was wrong about something, over and over. I was, in fact, correct. i'm just clearing the air, which isn't such a babyish thing from where I'm standing. If it were you in my shoes, you'd want to clear it, too TRAMP----this "self righteous individual" is wrong you are correct...thank you for setting the record straight---Cochise | ||
| Dbird29 |
Y'all feel better now?  | ||
| Cochise |
Now I can sleep at night. |
