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What is a trademark?

A trademark is a limited property right in a particular word, phrase or symbol.

A trademark is either a word, phrase, symbol or design, or combination of words, phrases, symbols or designs, which identifies and distinguishes the source of the goods or services of one party from those of others.

Normally, a mark for goods appears on the product or on its packaging, while a service mark appears in advertising for the services.

An example is the mouse ears used by Disney. The mouse ears are known around the world as being Mickey Mouse and being Disney. Mercedes uses the famous 3-prong symbol in a circle. The Olympic rings, Alfred E. Newman, the NBC peacock, all represent famous trademarks. Sometimes a name is a trademark. Xerox is one example.

The owner of a trademark has the exclusive right to use in commerce that symbol, or name or word, to promote its company and its products under the Lanham Act, which is the primary federal legislation concerning trademarks.

However, and it is a big however, the Lanham Act also specifically recognizes the "fair use" of a company's trademark.

The Fair Use Doctrine grants the use of a trademark under certain conditions.

What is not Fair Use? If you are selling a Minnie Mouse plate and you use a picture of Mickey Mouse to draw attention to the advertisement, that is not fair use. You can use only a picture of the actual product. Additionally, using non-specific words, like Winnie The Pooh, again to draw attention to the advertisement, is an infringement.

Since at least the middle ages, trademarks have served primarily to identify the source of goods and services, "to facilitate the tracing of 'false' or defective wares and the punishment of the offending craftsman." F. Schechter, The Historical Foundations of the Law Relating to Trade-marks 47 (1925).

The law has protected trademarks since the early seventeenth century, and the primary focus of trademark law has been misappropriation--the problem of one producer's placing his rival's mark on his own goods.

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