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Trademark Definitions & Trademark Law

Trademark registration can be granted on distinctive names, logos and slogans. Marks may be inherently distinctive because they are original and unique, or may become a strong mark over time or as a result of a marketing campaign. A trademark protects names, words, symbols, sounds, and colors that distinguish goods and services from those manufactured or sold by others, and to indicate the source of the goods.

To the uninitiated, trademark law is confusing. Appropriate because the touchstone of trademark infringement is consumer confusion. Trademark lawyers, i.e., corporate lawyers, trade on this confusion when falsely threatening trademark infringement and improperly interfering with the legitimate sales of items. The following information is provided in an effort to explain in lay terms the various aspects of trademark law; not all of which are consistant throught the federal court system and some are still unsettled. Also, read An Overview of Trademark Law, a very informative article by Edward H. Freeman. Also try reading our Trademark History for a better understanding of the whys and whens of trademark law.

As far as confusion is concerned, there is ordinary confusion, initial interest confusion, secondary confusion, subsequent confusion, down stream confusion, reverse confusion and contributory confusion. Who's confused?

There are a lot of on-line sales sites that are infringing upon trademarks and copyrights. Many sites openly sell "replicas", which by definition are infringing. We do not endorse infringment. These pages are designed as a reference for those who are not infringing or those who are not sure that they are. There is an increasing number of companies and corporate lawyers who are trying to exploit unknowing and unwilling infringers. Beware.

Some companies, and their corporate lawyers, will allege almost anything in order to pad their case, and paychecks, to scare their opponent. Their original allegations do not have to be actually presented to a court if it goes to trial. In many cases the allegations are an act of intimidation, or posturing. Remember, lawyers get paid by the number of pages they generate; not whether they win or lose. If lawyers got paid for winning, there would be considerably fewer court cases. Most corporate lawyers will deny that the first sale doctrine applies to the product of their client.

For some of these definitions were present articles that have been written on the subject. We do not agree with all of the opinions or conclusions stated in these articles. We only present information we consider to be well-argued and factually supported. We do not take credit for the information presented. The great majority of it is gleaned from other sources. We credit the originator when using articles or large portions.

Bear in mind, that from 1947, the year the Lanham Act was made law, through 2005, the owners of trademarks have not fared well in federal court cases for trademark infringement. Of the cases that went to trial, the trademark owners won ONLY 51% of the decisions. They lost as often as they won. So, if a trademark owner accuses you of infringement, and you are confident you were not infringing (after reading this site), the trademark owner may be guilty of Trademark Abuse. In addition, few courts award attorney fees to the winning side and almost no courts award treble damages.

  • Blurring, the act of diluting a famous trademark.

  • Classifications of trademarks, what they are and what they include.

  • Common Law Trademark Rights, they do exist and they can complicate matters.

  • Confusion using the same 'mark' as--or one confusingly similar to--that used by another in such a way that they confuse the public about who really produced the goods or service.
  • Initial Interest Confusion, attracting the attention of a potential buyer through deception.

  • Likelihood Of Confusion, what trademark infringement is all about.

  • Reverse Confusion, where a new user of a mark overtakes the old user of a mark.

  • Subsequent Confusion, consumer confusion down the road after the initial sale. Also called downstream confusion.
  • Contributory Infringement, or the act of helping someone else infringe.

  • Damages for trademark infringement.

  • Dilution, for famous marks only.

  • Disclaimers, what courts say about them and how corporate lawyers lie about them.

  • Disclaimers and Federal Court, the Fifth Circuit Court of Appeals . suggested it was a better remedy than injunctive relief.

  • Fair Use, a valid defense to trademark infringement.

  • History of Trademarks

  • The Material Difference Standard deals with "the distinction between domestic goods and gray market goods", i.e.," whether there are differences between the foreign and domestic product and if so whether the differences are material."

  • Parallel Imports, products coming into the country.

  • Puffery, according to trademark law, is not actionable.

  • Secondary Meaning, what it is, and what determines it.

  • Tabberone Disclaimer, and suggested auction title format, that you can copy and use.

  • Trade Dress and what it is.

  • Trademark Extortion, opinion and articles

  • Unfair Competition, just what it sounds like.

  • What is a Trademark?
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