ohiolandlord
05-03-2006, 10:36 AM
Think of trademarks or service marks as "brand names." They help a company distinguish their product or service from their competitors. Trademarks are more than just words or logos. They can be three dimensional symbols, such as McDonald's "golden arches" or the unique shape of the cl***ic Coke bottle. A trademark can also be a color (e.g., the pink color of Owens-Corning insulation), sounds (e.g., the Intel chime) and scents. Technically, "trademark" means a symbol used with goods, rather than services. Marks used with services are called "service marks". For simplicity, "trademark" (or "mark") as used here means any symbol that identifies only one firm or group of related firms.
In the United States, trademark rights arise from use, as opposed to registration. At common law, trademark ownership is acquired by actual use of the mark in a given market. To acquire ownership of a trademark it is not enough to have invented the mark first or even to have registered it first; the party claiming ownership must have been the first to actually use the mark in the sale of goods or services. The owner of a mark acquires both the right to use a particular mark and the right to prevent others from using the same or a confusingly similar mark. Accordingly, trademark ownership confers an exclusive right to use the mark.
When more than one user claims the exclusive right to use a federally unregistered trademark, priority is determined by the first actual use of [the] mark in a genuine commercial transaction. The general rule is that, as between conflicting claimants to the right to use the same mark, priority of appropriation determines the question. The exclusive right to a trademark belongs to one who first uses it in connection with specified goods.
Thus, the first user to appropriate and use a particular mark – the "senior" user – generally has priority to use the mark to the exclusion of any subsequent – or “junior” – users.
Due to the United States’ use-based trademark law, third parties might own and enforce rights to trademarks that they have never formally sought to register or protect. Consequently, it is important to conduct a trademark search as a way of determining whether a prospective trademark is available for use and may be registered with the United States Patent and Trademark Office.
Infringement of third parties trademark is not a matter of simply using a trademark exactly like your competitor. A side-by-side comparison of the marks themselves is insufficient to analyze likelihood of confusion. Marks must be considered in the context in which the goods or services are sold. As such, the courts have developed a set of factors in which to analyze likelihood of confusion:
1. Strength of the plaintiff's mark;
2. Relatedness of the goods;
3. Similarity of the marks;
4. Evidence of actual confusion;
5. Marketing channels used;
6. Likely degree of purchaser care;
7. Defendant's intent in selecting the mark;
8. Likelihood of expansion of the product lines.
continue article here:
www.search-my-trademark.com
In the United States, trademark rights arise from use, as opposed to registration. At common law, trademark ownership is acquired by actual use of the mark in a given market. To acquire ownership of a trademark it is not enough to have invented the mark first or even to have registered it first; the party claiming ownership must have been the first to actually use the mark in the sale of goods or services. The owner of a mark acquires both the right to use a particular mark and the right to prevent others from using the same or a confusingly similar mark. Accordingly, trademark ownership confers an exclusive right to use the mark.
When more than one user claims the exclusive right to use a federally unregistered trademark, priority is determined by the first actual use of [the] mark in a genuine commercial transaction. The general rule is that, as between conflicting claimants to the right to use the same mark, priority of appropriation determines the question. The exclusive right to a trademark belongs to one who first uses it in connection with specified goods.
Thus, the first user to appropriate and use a particular mark – the "senior" user – generally has priority to use the mark to the exclusion of any subsequent – or “junior” – users.
Due to the United States’ use-based trademark law, third parties might own and enforce rights to trademarks that they have never formally sought to register or protect. Consequently, it is important to conduct a trademark search as a way of determining whether a prospective trademark is available for use and may be registered with the United States Patent and Trademark Office.
Infringement of third parties trademark is not a matter of simply using a trademark exactly like your competitor. A side-by-side comparison of the marks themselves is insufficient to analyze likelihood of confusion. Marks must be considered in the context in which the goods or services are sold. As such, the courts have developed a set of factors in which to analyze likelihood of confusion:
1. Strength of the plaintiff's mark;
2. Relatedness of the goods;
3. Similarity of the marks;
4. Evidence of actual confusion;
5. Marketing channels used;
6. Likely degree of purchaser care;
7. Defendant's intent in selecting the mark;
8. Likelihood of expansion of the product lines.
continue article here:
www.search-my-trademark.com