Tabberone is pronounced tab ber won |
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This information is taken directly from the court opinion. It is not taken out of context nor is it altered. |
From AOL v AT&T, 243 F3d. 812 (4th Cir, 1999)
Generic marks are the last, and by far most important for purposes of this Memorandum Opinion, category. A mark is generic when it "Identifies a class of product or service, regardless of source[.]" Glover v. Ampak, Inc., 74 F.3d 57, 59 (4th Cir. 1996); see also Abercrombie & Fitch, 537 F.2d at 9 ("A generic term is one that refers, or has come to be understood as referring, to the genus of which the particular product is a species"); Blinded Veterans Ass'n v. Blinded Am. Veterans Found., 872 F.2d 1035, 1039 (D.C. Cir. 1989) ("A generic term is one commonly used to denote a product or other item or entity, one that indicates the thing itself, rather than any particular feature or exemplification of it"); Miller Brewing Co v. G. Heileman Brewing Co., Inc., 561 F.2d 75, 79 (7th Cir. 1977), cert. denied, 434 U.S. 1025, 98 S.Ct. 751, 54 L.Ed.2d 772 ("[A] generic or common descriptive term is one which is commonly used as the name or description of a kind of goods"); S. S. Kresge Co. v. United Factory Outlet, Inc., 598 F.2d 694, 696 (1st Cir. 1979) ("Generic terms are those which refer to a genus of which a particular product is a species, without distinguishing its source or origin"); Surgicenters of Am., Inc. v. Medical Dental Surgeries, Co., 601 F.2d 1011, 1014 (9th Cir. 1979) ("A 'generic' term is one that refers, or has come to be understood as referring', to the genus of which the particular product or service is a species"); Convenient Food Mart, Inc. v. Convenient Mart, Inc., 690 F. Supp. 1457, 1460 (D. Md. 1988), aff'd by unpublished opinion, 870 F.2d 654 (4th Cir. 1989). Rather than answering the questions "Who are you?" and "Where do you come from?," generic marks tell the buyer what the product is. 1 J. McCarthy, 405-6. Generic marks never qualify for the protections of the Lanham Act; are not registrable; and a registered mark can be canceled at any time upon a finding that the mark is, or has become, generic. See 15 U.S.C. §§ 1052, 1064(3); see also Park 'N Fly, Inc. v. Dollar Park and Fly, Inc., 469 U.S. 189, 194, 105 S.Ct. 658, 661, 83 L.Ed.2d 582 (1985); Glove, 74 F.3d at 59; Genesee Brewing Co., Inc. v. Stroh Brewing Co., 124 F.3d 137, 143 (2 nd Cir. 1997); S. S. Kresge Co., 598 F.2d at 696; Abercrombie & Fitch, 537 F.2d at 9. A generic mark cannot receive trademark protection because "generic" and "trademark" are mutually exclusive terms. BellSouth Corp. v. White Directory Publishers, Inc., 1999 WL 190903 (M.D.N.C. 1999) (citing 2 J. McCarthy § 12:1 at 12-4). Trademarks are used to distinguish a producer's 'goods and services from those of his competitors, while generic terms denote the product and the service itself, rather than the source, so they are in no way distinctive of the goods and services to which they are applied. See Baird, 14 J. Corp. L. at 926-28. |