What Is The Trademark Law Basics in Commercial Law?
When it comes to business, there are many important factors to keep in mind. One of the most essential aspects of any company is its trademark. A trademark is a symbol or name that represents your business and sets you apart from competitors. In order to protect your trademark, it’s important to understand the basics of trademark law. This article will outline the most important things you need to know about trademarks and trademark law. By general understanding how they work, you can ensure that your business is fully protected.
Which important trademark law do businesses need to know?
Trademark law is a type of commercial law. It regulated many rules for business to comply with the legislations.
There are several important trademark law that businesses need to be aware of in order to protect their intellectual property and punch your branch in public without worrying the competitor’s stealing. The first is the Lanham Act, which related to the primary federal law governing trademarks in the United States. This law prohibits trademark infringement and allows businesses to sue for damages if their trademark is infringed upon.
The second important law is the Trademark Dilution Revision Act, which strengthens protections against trademark dilution. This law makes it illegal to use a famous trademark in a way that would lessen its uniqueness or diminish its value.
Finally, the Anticybersquatting Consumer Protection Act outlaws “cybersquatting,” which is the practice of registering domains that are similar to well-known trading marks in an attempt to profit from consumer confusion.
Businesses need to be aware of these laws in order to protect their marks and avoid infringement lawsuits. They should also consult with a qualified trademark attorney to ensure that their marks are properly registered and protected.
Inherently distinctive and not inherently distinctive
Trademarks come in two basic flavors: “inherently distinctive” and “not inherently distinctive.”
Inherently distinctive ones are fanciful, arbitrary, or suggestive in relation to the products or services with which the mark is used. Fanciful marks are the strongest and easiest ones to protect. Fanciful marks are coined terms such as KODAK for photographic materials and VERIZON for telecommunication services.
Arbitrary marks are common terms used outside of their normal context, such as APPLE for computers and AMAZON for an online book store. Suggestive marks suggest a quality or ingredient of a product but require some “mental gymnastics” to be understood, for example, GREYHOUND for bus service and ODOR EATERS for deodorizing shoe insoles.
Marks in this inherently distinctive category are accorded broad and strong protection because they are unique.
Marks that are not inherently distinctive are generally given less protection. The category of marks that are not inherently distinctive include descriptive marks that identify or describe the goods or their attributes (BATTERY EXTENDER for battery chargers), personal or surname marks (LES SCHWAB for retail tire stores), and geographically descriptive marks (SONOMA HILL CELLARS for wine).
Due to the lack of uniqueness these marks will not be accepted for trademark registration without affirmative proof that the marks have acquired “secondary meaning” or are recognized by consumers.
The distinction between the inherently distinctive suggestive trademark and the not-inherently distinctive descriptive trademark is a gray area and whether a particular mark qualifies as suggestive or descriptive is often the subject of debate in litigation or before the US Patent and Trademark Office.
The last category of trademark is, in fact, not a trademark at all. A generic term is the name of a thing itself, such as “wine,” “café,” and “shop” and cannot be claimed as proprietary or protected under any circumstances. Generic terms cannot be registered.
How do you acquire rights in a trademark law?
There are two ways to acquire trademark rights:
- Use the mark in commerce; or
- Register the mark with the USPTO. (you will give the patent certificate and copyright for your own branch)
If you use in commerce, you may be entitled to common law rights in the mark. Common law rights arise from actual use of the mark and are generally limited to the geographic area in which the mark is used. In order to obtain federal trademark protection, however, you must register your mark with the USPTO. Federal trademark registration provides a number of benefits, including nationwide priority of use and constructive notice of your claim of ownership of the mark. Federal trademark registration can also serve as a basis for obtaining registration in foreign countries.
To register a trademark, you must file a trademark application with the USPTO. The application must include:
- The name and address of the applicant;
- A clear and precise drawing of the mark;
- The goods or services on which the mark will be used; and
- The date of first use of the mark in commerce.
If the USPTO determines that the mark is eligible for registration, it will publish the mark in the Official Gazette. After publication, any party who believes it would be damaged by registration of the mark has 30 days to file an opposition to the registration. If there is no opposition, or if any opposition is unsuccessful, the USPTO will issue a registration certificate.
Once you have obtained a registration, you must use the mark in commerce and file periodic declarations of use and incontestability with the USPTO to keep the registration alive. You must also renew your registration every 10 years.
If you have any questions about how to acquire rights in a trademark, or if you need assistance with filing a trademark application or opposition, please contact an experienced trademark lawyer for help.
What sources of law govern trademarks?
There are four main sources of law that govern: federal statutes, state common law, the federal Lanham Act, and international treaties.
Federal Statutes
The two main federal statutes governing trading marks are the Trademark Act of 1946 (also known as the Lanham Act), and the Federal Trade Commission Act. It establishes procedures for registering trademarks, provides for trademark infringement lawsuits, and sets forth rules for the use of marks. The Federal Trade Commission Act regulates unfair or deceptive trade practices, including false advertising.
State Common Law
Most states have adopted their own versions of the Uniform Trade Secrets Act, which provides protection for trade secrets. In addition, many states have common law principles that protect trademarks. These common legal principles are similar to the Lanham Act, but may provide additional protections.
The Federal Lanham Act
The Lanham Act is the primary federal statute governing trademarks. It establishes procedures for registering them, provides for trademark infringement lawsuits, and sets forth rules for the use of them. The Lanham Act applies to all used in interstate commerce, including Internet commerce.
International Treaties
There are two main international treaties that govern trademarks: the Paris Convention and the Madrid Protocol. The Paris Convention is a treaty that provides for basic trademark protections, such as the right to file a trademark application in another country. The Madrid Protocol is a treaty that streamlines the process for registering trademarks in multiple countries. The Madrid Protocol applies to trademarks that are used in commerce between contracting parties, which includes the United States.
In short, it is important for businesses to be aware of these trademark law in order to protect their brands and products. While it can be a complex process, with the help of an experienced lawyer, businesses can take the necessary steps to secure their trademark and prevent others from using them. Have you ever had to enforce your trademark rights? Or you can search the information you need on our site as the below source
