Summary US Trademark Law

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Summary - US Trademark Law

  • 1 US Trademark Law

  • What are the purposes of trademark law?
    1. To protect consumers from being confused or deceived about the source of goods or services
    2. To provide trademark owners with an incentive to create a quality product (encouragement)
    3. To ensure that a producer and not it's competitors will realise/receive the financial award of being associated with a desirable product.
  • Does a trademark falls in the public domain?
    No. It lasts forever. You have to keep renewing it, but then it never falls in the public domain. 
  • Does trademark give a monopoly over the word? 
    No, you get not a monopoly but the exclusive right to use the mark in association with a specific product/range of products. 
  • When are you allowed to license?
    When you exercise quality controll. You have to maintain some oversight, you have to supervise to be sure that they made good quality products.
  • Explain the three types of trademarks
    Trade name: A name or symbol used to identify/distinguish a comany partnership or business. 
    1. The name under which a business operates
    2. They are only protectable if it signals consumers about the source of a product.

    Trade dress: refers to the overall appearance and image in the marketplace of a product or commercial enterprise (what a product looks like)

    Service mark: A name, phrase or other devise used to identify and distinguish the services of a particular provider. (a trademark protects products, a servicemark services)
  • What is trademarkable?
    Words, logos, marks that are made up of other things (like sounds, colors and smells).
  • Which aspects of a product are not trademarkable? Explain.
    Aspects of a product that are functional cannot be trademarked. 

    Primary functionality test: provides that if a product feature is quoted essential to the use or purpose of the article, or if it affects the costs or quality of the article, then the feature is functional. And you cannot get a trademark.

    Aesthetic functionality test: Used in cases where a feature might be both functional and aesthetic. It provides that if the feature places competitors at a significant non reputation related disadvantage then it cannot be trademarked.
  • Why should you register a trademark? 
    1. Your trademark will be respected nationwide.
    2. If you sue for trademark infringement, then the Court will presume thad the trademark is valid. The defendant can't say the trademark has a problem.
    3. The client will be presumed by the court to be the true owner of the trademark right.
    4. The client is presumed by the Court not to have abandoned the trademark through non use.
    5. You can sue in federal court. this is important, because the US has two Court systems. You never want to be in State Court, they are less knowledgeable.
    6. After registration and 5 years, the trademark becomes incontestable. A competitor can't run in a trademark office and let it cancel.
    7. The trademark beco,es a public record when the person registers. Third parties are on constructive notice of the trademark as a matter of law. The defendant can't say that he didn't know.
    8. Money. If you register your trademark, you sue and you win, then you can receive enhanced remedies.
    9. You have the right to ask the US customs service to have customs. It prevents other people to import goods that infringe on your trademark. 
  • What are the four categories of distinctiveness? 
    later aanpassen.
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Example questions in this summary

What are the purposes of trademark law?
Does a trademark falls in the public domain?
Does trademark give a monopoly over the word? 
When are you allowed to license?
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