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Trademark Questions
by citizen » Fri Feb 08, 2008 7:03 pm
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citizen - Brown Belt
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How do trademarks work? I mean, I've thought of names for several ideas I've had and searched for trademarks on them. Some I've found are not trademarked, others have trademarks, but not in the same area as mine, and still others have trademarks that are "dead". I'm wonder how I know if I can use/apply for them.
For instance, say I come up with an idea and the name I like is "ABCDEFG" and I search and there is a restaurant with that name, a garden tool, but my idea is a board game...can I trademark it?
What if the trademark has "dead" next to it?
Thanks
Jason
For instance, say I come up with an idea and the name I like is "ABCDEFG" and I search and there is a restaurant with that name, a garden tool, but my idea is a board game...can I trademark it?
What if the trademark has "dead" next to it?
Thanks
Jason
Trademarks
by inventor-x » Sat Feb 09, 2008 3:02 am
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inventor-x - Brown Belt
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Citizen
There could be a couple of reasons why it says dead next to it.
For whatever reason they quit using the mark or they did not pay the Maintenance fees.
Generally Trademarks are good for 100 years unless they quit paying the Maintenance fees.
The other thing is that anybody can use (tm or sm), But when it comes to (R) that is a different story.
You can use either (tm or sm) until you get the (R) status.
Utility Patents are good for 20 years but when you attach a Trademark to the Patent with an (R) your patent becomes good for 100 years as long as you pay the Maintenance fees.
I have found that some Patent & Trademark Attorney's really DO NOT know there way around all the laws in these matters.
Trademarks apply to Names, Phrases & Works of Art.
Trademarks are also like Patents, just because you have a Registered Mark or Patent you need to be able to defend it in court - If somebody challenges you.
A perfect example is COKE.
There could be a couple of reasons why it says dead next to it.
For whatever reason they quit using the mark or they did not pay the Maintenance fees.
Generally Trademarks are good for 100 years unless they quit paying the Maintenance fees.
The other thing is that anybody can use (tm or sm), But when it comes to (R) that is a different story.
You can use either (tm or sm) until you get the (R) status.
Utility Patents are good for 20 years but when you attach a Trademark to the Patent with an (R) your patent becomes good for 100 years as long as you pay the Maintenance fees.
I have found that some Patent & Trademark Attorney's really DO NOT know there way around all the laws in these matters.
Trademarks apply to Names, Phrases & Works of Art.
Trademarks are also like Patents, just because you have a Registered Mark or Patent you need to be able to defend it in court - If somebody challenges you.
A perfect example is COKE.
by Average Inventor » Sat Feb 09, 2008 8:46 am
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Average Inventor - Brown Belt
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inventor-x,
I hate to challenge information, but in the interest on not confusing new inventors, the (R) does not extend a patent to 100 years. A registered trademark can enforce the IP of the invention and can prevent the name being used but once the 20 years is up anyone can make and sell the technology that was patented under that trademark they will just have to call it something different and they can not receive patent protection for that previously patented technology. They can however create additional utility and patent that and use the original technology as their base as long as the 20 years is up and and long as the new patent claims only cover the new utility created.
Lastly COKE is an example of a trade secret since there is no patent on the formula for Coca Cola(tm) so in that case yes having a trademark on a formula that contains a trade secret has worked for many companies that have products that are very difficult to reverse engineer.
I hate to challenge information, but in the interest on not confusing new inventors, the (R) does not extend a patent to 100 years. A registered trademark can enforce the IP of the invention and can prevent the name being used but once the 20 years is up anyone can make and sell the technology that was patented under that trademark they will just have to call it something different and they can not receive patent protection for that previously patented technology. They can however create additional utility and patent that and use the original technology as their base as long as the 20 years is up and and long as the new patent claims only cover the new utility created.
Lastly COKE is an example of a trade secret since there is no patent on the formula for Coca Cola(tm) so in that case yes having a trademark on a formula that contains a trade secret has worked for many companies that have products that are very difficult to reverse engineer.
by Levi Porter » Sat Feb 09, 2008 10:30 am
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Levi Porter - Brown Belt
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citizen wrote:Can more than one person own a trademark as long as the trademark is in different areas?
For instance, I've seen companies with the same name, but in different fields...is that legal?
My understanding is that trademarks are national. DBA's (Doing Business As - Registered Business Names) can be the same and have multiple states with the same names as far as I know.
In the beginning of the dot com boom, there was a lot of people that bought the .com names of trademarked companies, and then tried to sell it to them.
The last I checked, the ruling was that if someone had bought the name "Apple.com", as long as they were an apple farm or had something to do legitimately with apples, then they could legally keep the name.
I would think with money and lawyers, an apple farmer would get ran out if Apple wanted to though.
Sorry, it's a little off topic, but seems somewhat relevant.
by CriterionD » Sat Feb 09, 2008 4:19 pm
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CriterionD - Blue Belt
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Levi Porter wrote:citizen wrote:Can more than one person own a trademark as long as the trademark is in different areas?
For instance, I've seen companies with the same name, but in different fields...is that legal?
The last I checked, the ruling was that if someone had bought the name "Apple.com", as long as they were an apple farm or had something to do legitimately with apples, then they could legally keep the name.
I would think with money and lawyers, an apple farmer would get ran out if Apple wanted to though.
Sorry, it's a little off topic, but seems somewhat relevant.
Trademark infringement is determined on a "likelihood of confusion" basis. The issue at hand is whether relevant consumers would be likely to associate the goods or services of one party with those of another party as a result of trademark usage. A variety of factors may be examined when analyzing a trademark infringement issue, the most notable of which are: the similarity - visual and phonetical - of any marks at issue; and the commercial relationship between the goods or services described by any marks at issue.
There is no law that unconditionally prevents someone from registering apple.com, regardless of who they are or what they do. It cannot constitute trademark infringement unless the domain name is used as a trademark - i.e. used to describe a good or service for the purpose of distinctively identifying that good or service. If someone registered the domain name and then set-up an online computer store, displaying Apple's logo prominently, then you're probably infiringing on their trademark. Well, really, since Apple's such a popular, well-known brand, maybe you can get into hot water a bit more easily. Trademark dilution can also come into play. But, for the average brand...
There are also laws specific to domain names - but they simply revolve around the registrar's intent. Meaning - if there is reason to believe that someone registered apple.com for the purposes of selling it to Apple - that would be illegal. But if someone has a legitimate reason for having purchased the domain name (perhaps they have an apple farm), Apple can't necessarily do anything about that.
by DannyB » Sat Feb 09, 2008 7:37 pm
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Is one's trademark actually protected once it is offered it for sale? I forgot where I read how you actually lay claim to a mark.
Here is the link to whether it should be registered or not. This doesn't make a lot of sense to me. You could do a search and just because a mark isn't registered doesn't mean that it isn't out there somewhere, just not registered. I would think that all marks should be registered so that the general public could do an effective search before they make business plans around a name.
http://www.uspto.gov/web/offices/tac/do ... gister.htm
Here is the link to whether it should be registered or not. This doesn't make a lot of sense to me. You could do a search and just because a mark isn't registered doesn't mean that it isn't out there somewhere, just not registered. I would think that all marks should be registered so that the general public could do an effective search before they make business plans around a name.
http://www.uspto.gov/web/offices/tac/do ... gister.htm
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