History Of US Trademark

Consumers in the 19 century had more face?to--face interaction with the manufacturer of the product they were purchasing. However, as 20 century consumers become less aware of where there products were coming from, Congress determined when creating the Trademark Act of 1905 that trademarks would serve to provide this information to consumers. However, trademark infringement cases were still limited to cases of direct competition and more specifically to goods with similar descriptive properties. Rather than proving dilution of the senior mark by the junior mark, the senior mark had to prove consumer confusion.

Dilution statutes until this point were only at the state level. A heavily contested issue with the 1988 Trademark Law Revision Act was dilution and whether it should be included in the act. It was passed in the Senate with a dilution provision, but removed from the House version before being passed. However, in 1996 Congress, without hesitation, amended the 1946 Lanham Acts to include a section on dilution, the Federal Trademark Dilution Act (FTDA).

The court must determine if it was meant to require proof that actual harm was caused or merely to mean a likelihood of harm. Dilution has been defined by the FTDA as the ?lessening of the capacity of a famous mark to identify and distinguish goods or service, regardless of the presence or absence of competition between the owner of the famous mark and other parties, or likelihood of confusion, mistake, or deception.?

Dilution through tarnishing may create a negative association with the goods or services covered by the senior mark. In order to dilute a more senior mark, the junior mark must be sufficiently similar to the Plaintiff?s mark in order to cause dilution.

The article was produced by the writer of masterpapers.com. Sharon White has many years of a vast experience in law school essays and love essays writing consulting. Get free samples of essays, coursework and MBA essays tips.

Choosing a Trademark: A Couple of Important Considerations

If you are thinking about starting up a new business or introducing a new product or service to the market, one of the last things you may have considered is seeking trademark protection for the name of your business, product or service. However, the importance of selecting a trademark cannot be emphasized enough. Often times the trademark you choose will play a role in shaping the consumer's first impression of the product or service offered by your company. This article will discuss some of the important issues associated with choosing a trademark for your business, product or service.

What is a Trademark?

A trademark can be any word, name, symbol, or device, used, or intended to be used, in commerce to identify and distinguish the goods of one manufacturer or seller from goods manufactured or sold by others, and to indicate the source of the goods. Likewise, a service mark can be any word, name, symbol, or device, used, or intended to be used, in commerce, to identify and distinguish the services of one provider from services provided by others, and to indicate the source of the services. However, it should be noted that it is not important for a consumer of a product to know the name of the company that manufactured the product, only that the product can be distinguished from the products of other companies.

Choosing a Trademark

A. Avoid Likelihood of Confusion

There are a couple of major issues that should be considered when choosing a trademark. First, it is crucial to determine whether or not another entity is already using a trademark that is the same or similar to your proposed trademark in connection with related products or services. This is commonly referred to as the "likelihood of confusion" issue. Likelihood of confusion is the basic test that is used to determine trademark infringement. Under this test, the question to be answered is whether the average purchaser of a product or service would be confused or deceived as to the source of the product or service. It is important to note that the "likelihood of confusion" issue is evaluated with regards to the specific product or service that the trademark identifies. Thus it is possible to have identical trademarks associated with totally unrelated goods or services, such as "EQUAL" for synthetic sweetener and "EQUAL" for a synthetic resinous material for balancing tires.

B. Make Your Mark Distinctive

A second important issue that should be considered is the distinctiveness of your proposed trademark in relation to the goods or services. Trademarks can generally be classified in four categories: generic, descriptive, suggestive, and arbitrary/fanciful. Typically, the strength of a trademark is related to the category in which it falls. For example, arbitrary or fanciful trademarks are very strong, while a trademark that is generic receives no protection.

As its name suggests, a generic term is the common name associated with a type of product and therefore can never receive trademark protection. The policy behind this is that every competitor should be able to describe his goods as what they actually are. Some examples of terms that were found generic include "SUPER GLUE" for strong-bonding, rapid-setting glue and "SURGICENTER" for surgical centers.

Descriptive marks literally describe the product or service. A test that is often used to determine descriptiveness is whether the mark immediately conveys an idea of the ingredients, qualities or characteristics of the goods. Descriptive marks are generally not registrable with the USPTO unless the applicant can show that consumers have learned to associate the mark with a single source, which is known as "secondary meaning" in legal terms. Examples of marks found to be descriptive are "HONEYBAKED" for hams, "TRIM" for manicuring implements, and "ICE" for beer.

A suggestive mark is similar to a descriptive mark, but does not literally describe the product or service. Suggestive marks require some analysis, imagination, thought and perception to determine the nature of the goods or services. Moreover, suggestive marks do not require a showing of secondary meaning to receive protection. Some examples of suggestive marks are "GREYHOUND" for bus services, "JAGUAR" for automobiles, and "COPPERTONE" for suntan lotions.

Finally, arbitrary and fanciful marks are very strong and typically receive a great deal of protection. Arbitrary marks are common words that are applied in an unfamiliar context, such as "APPLE" for computers, "CAMEL" for cigarettes, and "ORACLE" for software. On the other hand, fanciful marks are coined (made-up) terms that do not have a dictionary meaning, such as "KODAK" for film, "LEXUS" for automobiles, "ROLEX" for watches, and "XEROX" for copiers.

Conclusion

Before expending large amounts of time and money on advertising and marketing for a new product or service, a business should consider the points set out above. As to the likelihood of confusion issue, a comprehensive trademark search should be performed to determine whether another entity is already using a mark similar to the proposed mark in association with similar or related goods. When choosing a trademark, the distinctiveness of the mark should be a major consideration. From a purely legal perspective, it is best to choose a mark that is arbitrary or fanciful. If at all possible, businesses should stay away from trademarks that are descriptive of their goods or services, since descriptive marks are more difficult to register and protect.

DISCLAIMER

We hope you understand that we cannot possibly give accurate legal advice in a brief article. Accordingly, nothing in the above is intended as specific legal advice to any person. Such legal advice can only be given by a qualified practitioner after a careful review of all the individual facts. We urge you to consult us, or another licensed professional, before you proceed.

David Dawsey is an intellectual property attorney with the law firm of Gallagher and Dawsey Co. LPA. David also operates TheTrademarkFirm.com, which is the online portal for trademark searches and applications. Please visit http://www.TheTrademarkFirm.com.

Free Trademark Searches

Before filing for trademark, it is a good idea to search for information such as Trademark Acceptable Identification of Goods and Services, Trademark Manual of Examining Procedure, Design Code for the logos and images. With these guidelines, you can make certain the trademark you are developing is unique. It can also help you avoid any trouble or violations not only on the possible similarities on existing trademark, but on violation of standards that have been set.

When you file for a trademark with the United States Patent and Trademark Office (USPTO), there are many considerations you have to make to ensure the uniqueness of your trademark. Conventional things to consider are the name, word or phrase, the logo, symbol, design or images used in your trademark, making sure they are distinct from any of the existing trademarks out there. The main concern of the USPTO is to look for possible copyright infringement that your application may incur and to find ways to reject your trademark. With this risk at hand, it is best to search for trademarks existing and under application. There are free methods available for you to search for trademarks.

The Patent and Trademark Depository Library (PTDL) keeps records of patent and trademark materials within the United States of America at your disposal. They are also tasked to disseminate information involving patents and trademarks. You can go to the depository to manually check for whatever details you may need regarding trademarks or patents.

If there are other details, like laws or frequently asked questions you may need, you can visit the USPTO website to retrieve information they have posted. You can search for queries regarding trademarks, patents and copyrights. There are also news and articles related to the matter available , and you can use the Trademark Application and Registrations Retrieval (TARR) to search for the status of applications.

Trademark Search provides detailed information on Trademark Search, Free Trademark Searches, Online Trademark Searches, US Trademark Searches and more. Trademark Search is affiliated with Free Patent Searches.

Patents, Trademarks, Copyrights--What's the Difference?

Patents

A patent protects inventions through federal law. Inventions are your creative ideas for new products (articles of manufacture), machines, processes, methods, compositions of matter, ornamentation on products, or new plants. An improvement on an existing product may also be patented.

Utility patents protect the majority of these. To be patentable, your invention must be useful, novel and non-obvious. Design patents protect the ornamentation on devices. Plant patents protect new plant varieties.

Utility patents give you a monopoly (no one else can make, use, sell, offer for sale, or import your invention) for twenty years from the date of filing.

Design patents give you a monopoly for fourteen years from the date of issue, and prevent others from making the patented device with your ornamentation on them. (By way of example, a table is a useful device. If you could obtain a utility patent on a table with a flat surface and four legs, you could stop anyone from making such a table. If your table had an unusual ornamental shape or surface pattern, you would be able to prevent others from making tables with that shape or surface pattern.)

Plant patents last for twenty years from the filing date of the patent application.

Infringement of your patent allows you to potentially obtain treble damages plus attorney fees.

Trademarks

Trademarks (or service marks for services) protect names, logos, slogans, and the like through both federal and state laws. Your name, logo or slogan identifies you to your prospective customers as the source of the goods and services that you are offering, and thus constitutes a trademark.

There are both federal trademarks and state trademarks. There are also common law trademarks that are not registered at either the federal or state level. Federal trademark applications can be filed even before you are using the trademark name, logo or slogan to reserve your trademark.

Other than common law trademarks, federal and state trademarks must periodically be renewed. Federal trademarks must be renewed every ten years. If you no longer use the trademark, you lose your rights. Otherwise, so long as you continuously use and/or renew the mark, you will continue to have rights forever.

Infringement of your trademark allows you to potentially obtain treble damages and attorney fees.

Copyrights

Copyright protects your creative artistic expression, but only once it is set into a tangible form. For instance, you create and sing a song. There is no copyright unless the song is recorded or written, because there is no tangible representation of your artistic expression. However, once you write, record, photograph, draw, or otherwise create a tangible record of your artistic expression, you automatically have copyright. That is, you are the only one who has the right to make or sell copies.

Ideas cannot be copyrighted. They may only be patented. Examples of copyrightable materials are written words, such as in books, magazines, poems, songs; written music; performances of music; paintings and drawings; photographs, videos, architectural plans, website content and layouts, and computer software.

Copyright lasts for 70 years plus the life of the creator (or last to die for multiple authors) for new works under current law. If the work is made for hire, then the term is the shorter of 95 years from publication or 120 years from creation.

Federal laws provide you with the right to enforce your copyright, but only once it is registered. There is the possibility of obtaining statutory damages of up to $150,000.00, plus the possibility of being awarded attorney fees. Thus, it is very important to register your copyright as soon as practicable.

Other

Finally, trade secret protection is another means of providing protection to ideas. However, the key word here is secret. Let someone who has no need to know in on the secret and it is no longer protected. Trade secrets are most suitable to keep secret formulas or processes protected.

For more information, please visit http://www.trwiplaw.com.

C2006, Williamson Intellectual Property Law, LLC; all rights reserved, world-wide.
This article, and/or the reading thereof, shall not be construed as offering, containing or receiving of legal advice, and shall not create any attorney-client relationship or privilege. If you are considering protecting your intellectual property, you should consult with an attorney of your choice.

Thomas R. (Terry) Williamson III, Ph.D., Registered Patent Attorney
Williamson Intellectual Property Law, LLC
1870 The Exchange, Suite 100
Atlanta, GA 30339
770-777-0977
http://www.trwiplaw.com

PATENT: SEVEN WAYS TO KEEP YOU FROM THE WOLVES

You have an invention or an idea for an invention. The first people you may hear about - or even may contact you - are from an invention development company. They advertise on radio and TV, and in magazines that cater to the inventive mind - and even some newspapers.

Invention development companies are private and public research companies that purport to help inventors develop, patent, and promote their ideas so they can be commercially licensed or sold. While many of these organizations are legitimate, some are not.

I state my stand on the use of such companies on my website - www.gadgets-gizmos-inventions,com. But, you may want to go that way anyway to develop your patent or invention. If that's the case, here are seven helpful tips for you to make smart patent and invention development decisions:

1. Learn About the Patent Process.

When you understand the basics of how to get a patent, you will know when invention marketers are making promises they, or the patent system, can't deliver. Knowing the steps to do a patent search, and what is required, as well as knowing what happens in the patenting process can only help you in making the right decision. You will have a better idea about whether the company you are talking to knows what they are doing for you - and not just their pocketbook.

2. Do Your Homework.

Check the organization's references, ask for credentials, and then check them. Ask them for statistics on how many successes they have had compared to how many total clients. They are required by law to offer you this type of information. In fact, the American Inventors Protection Act of 1999 gives you the following rights when dealing with invention promoters.

Before an invention promoter can enter into a contract with you, it must disclose the following information about its business practices during the past five years:

* how many inventions it has evaluated,
* how many of those inventions got positive or negative evaluations,
* its total number of customers,
* how many of those customers received a net profit from the promoter's services, and
* how many of those customers have licensed their inventions due to the promoter's services.

This information can help you determine whether the promoter has been selective in deciding which inventions it promotes, and how successful the promoter has been. Ask for names of "successful" clients, and talk to them.

Invention promoters also must give you the names and addresses of all invention promotion companies they have been affiliated with over the past 10 years.

This information can help to determine whether the company you're considering doing business with has been subject to complaints or legal action.

You can call the U.S. Patent and Trademark Office (USPTO) at 1-866-767-3848, and the Better Business Bureau, the consumer protection agency, and the Attorney General in your state or city, and in the state or city where the company is headquartered to check them out.

3. Be Realistic.

Not every invention is patentable. Know that very few ideas - even the good ones - become commercially successful. Be wary of any developer willing to promote virtually any invention. If you are presented with the phrase - "We think your idea has great market potential" - beware, and take it for what it is - in a lot of cases, just a sales pitch.

4. Know Where Your Money Is Going.

Ask the organization how your money will be spent. Be on guard against large up-front fees and find out exactly how the money is spent. If the company gives you something like - "Our company has evaluated your idea, and now wants to prepare a more in-depth research report. It'll be several hundred dollars" - ask them if the idea is good enough for more research why don't they foot the bill.

5. Protect Your Rights.

DO NOT disclose your invention to a developer over the phone (or at any time) before first having them sign a confidentiality agreement. You could forfeit valuable patent rights. A sample confidentiality agreement is available on my website. ??6. Track Your Invention's Progress.

If you decide to use an invention development organization, deal directly with the agent or patent attorney who will be handling your patent application. A lot of these type of firms outsource the work which is not good for you.

Many invention promotion firms also may claim to perform patent searches on your idea. Fraudulent invention promotion firms usually do patent searches that are are incomplete, conducted in the wrong category, or unaccompanied by a legal opinion on the results of the search from a registered patent attorney.

Because unscrupulous firms promote virtually any idea or invention without regard to its patentability - they may go ahead and market an idea for which someone already has a valid, unexpired patent. In that case, you may be the one subjected to a patent infringement lawsuit - even if the promotional efforts on your invention are successful. Most probably, the way the infringement suit is attracted is through a successful product.

7. Don't Get Discouraged!

The patent process can be very complicated, so you will probably need professional help. There are many good patent agents and attorneys that can help you. The U.S. Patent and Trademark Office maintains a nationwide register of attorneys and agents who meet the legal, scientific and technical requirements of the office.

The first step should be a patent search done by a reputable searcher. Your patent attorney can help with this, and should review the search for a package price, depending on the complexity of the invention.

Hang in there. It is a long and complicated process. But if your idea passes the initial search test and evaluation, there is a good chance you can receive a patent - in two or so years.

For information on registered patent attorney and agents, you may visit the USPTO's Office of Enrollment and Discipline Web site at http://www.uspto.gov/go/oed.

Gary J. Cogley, JD, after being a musician, a TV Producer/Director/Writer, and an entertainment and IP attorney, now writes about all kinds of gadgets, gizmos and inventions. He also gives tips and info on patents, and scams to watch out for. Get info at: http://www.gadgets-gizmos-inventions.com

What Is Trademark Law

Trademarks can be anything from words, phrases, logos, symbols, or slogans, anything that will identify or distinguish a person's goods or services manufactured or sold to indicate their sources. Trademarks allow companies and businesses to be identified by their symbols or logos by what they are selling. For example, Nike is identified by the check symbol, and people identify that symbol with athletic wear and sneakers, that is Nikes symbol and cannot be used by anyone else. McDonald's symbol is the Golden Arches, when people see those they know who those arches belong to and what they sell. There are all different types of trademarks; a service mark is the same as a trademark except it promotes a service instead of a product. A certification mark is a symbol, device, or name used by an organization to vouch for their products. A collective mark is a symbol, mark, phrase, or label, used by member of an organization to identify goods, members, products, or services they provide. Only members of particular groups or organizations are allowed to use the collective mark, even the group itself cannot use collective marks, only the members of the group. Protecting your trademark with trademark law consists of preventing others from using your mark. If others were able to use your trademark, how would the consumers distinguish your product from others?

The law will favor business that first use the mark they choose, copyright laws come from the Lanham Act. This act is designed to prevent trademark infringement. The law prohibits uses of trademarks, trade names that are likely to cause confusion about the source of a product or service. Infringement law protects consumers from being misled by the use of infringing marks and also protects producers from unfair practices by an imitating competitor. The law does not give much security to trademarks that consist of common or ordinary words because they are not essentially unique. A person's name, geographical terms, and terms used to describe the product or service will receive little protection from the law. However, these trademarks can be protected if they gain distinctive recognition from long use and marketing. Trademarks that are not used, abandoned, or used to generically describe a type of goods or service, cannot be protected because if used, will cause confusion about the product among the public.

Most believe that when they register a specific domain name, the trademark is solely their own and nobody else can use it. This may not be true however, not only must you register the domain, but you have to use the business name enough to achieve distinction. The best way to do this is through customer awareness and marketing. Search around before you choose a trademark and make sure that it is not already in use. It would be very costly if an infringement lawsuit was brought against you for using someone else's trademark. Using a professional service to make a trademark search for you may be a good idea. Leeanna is an expert author writing for Trademark Law