A Trademark Legal Definition

In the United States, the legal situation was clarified by the Anticybersquatting Consumer Protection Act, an amendment to the Lanham Act that explicitly prohibited cybersquatting. It defines cybersquatting as «(occurring) when a person other than the trademark owner registers the domain name of a well-known trademark and then attempts to profit from it by returning the domain name to the trademark owner or by using the domain name to redirect business from the trademark owner to the domain name owner.» [49] The provision states: «[a] person is liable in a civil action brought by the trademark owner … if that person, regardless of his or her goods or services, (i) had a malicious intent to take advantage of the trademark […]; and registers, markets or uses domain names [that confusingly resemble someone else`s trademark or dilute another`s marking].» [50] To be used as a trademark, a trademark must be distinctive, that is, it must be able to identify the source of a particular product. To determine whether a trademark is distinctive, the courts divide trademarks into four categories based on the relationship between the trademark and the underlying product: (1) arbitrary or imaginative, (2) suggestive, (3) descriptive, or (4) generic. Since marks differ in each of these categories with regard to their distinctiveness, the requirements and degree of legal protection afforded to a given mark depend on the category in which it belongs. Various jurisdictions have laws designed to prevent trademark owners from making illegal threats of a trademark infringement lawsuit against other parties. These laws are designed to prevent large or powerful companies from intimidating or harassing small businesses. What are the costs after registering your trademark? For example, you use a logo as a trademark for handmade jewelry that you sell at a local farmer`s market. As your business grows and you grow online, you may want more protection for your trademark and decide to apply for federal registration. By registering your trademark with us, you create national rights to your trademark. Some States also have their own registration systems under state trademark law.

The word «trademark» can refer to both trademarks and service marks. A trademark is used for the goods, while a service mark is used for the services. Trademark rights must be preserved by the actual legal use of the trademark. These rights expire if a trademark is not actively used for a certain period of time, usually five years in most jurisdictions. In the case of the registration of a trademark, the non-use of the mark in the legal tender of business or the execution of the registration in case of infringement may also lead to the fact that the registration itself after a certain period of time may be held liable for an application for deletion from the register due to the «non-use». Trademark rights may be used to prevent others from using a similar confusing mark, but not to prevent others from making the same goods or selling the same goods or services under a distinctly different mark. Trademarks used in interstate or outside commerce may be registered with the United States Patent and Trademark Office, and most trademarks may also be registered in certain states. 10. What defensive measures are in place against trademark counterfeiting or dilution? The first requirement that a trademark be used in commerce stems from the fact that trademark law is constitutionally based on Congress` power to regulate interstate commerce. See commercial clause. The Lanham Act defines a trademark as a trademark that is used in commerce or that has been registered with the good intention of using it in commerce. See 15 U.S.C.

§ 1127. If a mark is not in use at the time of filing the application in the exchange, the registration may nevertheless be admissible if the applicant expresses in writing his intention to use the mark in good faith in commerce at a later date. See 15 U.S.C. § 1051. Both at common law and under the traditional registration procedures of the Lanham Act, exclusive rights to a trademark are granted to those who use it in commerce. A trademark identifies the owner of the trademark of a particular product or service. Trademarks may be used by others under license agreements; For example, Bullyland received a license to make Smurf figures; The Lego Group has acquired a license from Lucasfilm to launch Lego Star Wars; TT Toys Toys is a manufacturer of licensed ride-on cars for children. [6] The unauthorized use of trademarks by the production and trade of counterfeit consumer goods is called trademark piracy. The Standing Committee on the Law of Trademarks, Industrial Designs and Geographical Indications (SCT) is the forum in which WIPO Member States discuss political and legal issues related to international developments in trademark law and standards. Once a trademark has been registered, it is much easier for the trademark owner to prove their trademark rights and enforce those rights through an infringement action. [40] Unauthorized use of a registered trademark does not need to be intentional for the infringement to occur, although the harm in infringement proceedings is generally higher if there was an intention to deceive.

Contracts administered by WIPO, as well as national and regional laws, form the international legal framework for trademarks. The essential function of a trademark is to identify only the source or origin of the goods or services, so that a mark that bears its proper name indicates the source or serves as an appellation of origin. In other words, trademarks are used to identify a particular entity as a source of goods or services. The use of a trademark in this way is called trademark use. Some exclusive rights are attached to a registered trademark. Assuming that a trademark deserves protection, rights in a trademark can be acquired in two ways: (1) by being the first to use the trademark in the trade;; or (2) be the first to register the trademark with the U.S. Patent and Trademark Office («PTO»). 15 U.S.C. § 1127(a). Keep in mind, however, that descriptive marks are not eligible for protection (and can be registered) until they have acquired secondary meaning.

Thus, there may be a period for descriptive marks after the first use of the mark in the trade and before its secondary meaning during which it is not entitled to trademark protection. As soon as it has reached a secondary meaning, trademark protection occurs.