Our discussion under Investigation points out the benefits of a proper investigation or search before making a final selection. My motto is Search for the intersection where Selection Meets Protection.
What factors should I consider when selecting a term? The determining factors vary in importance depending upon what your investigation reveals. However Cheap Saul Niguez Jersey , everyone should consider the strength of the mark, namely, is it strong or weak, and where it fits on the continuum of marks?
What is a continuum? A continuum is a continuous extent, succession, or whole Cheap Nicolas Gaitan Jersey , no part of which can be distinguished from neighboring parts except by arbitrary division. This means that while some terms fit neatly into on category or another, others are labeled by subjective opinion of courts and trademark examiners.
What is the trademark continuum? The trademark continuum goes from strong to weak and is based upon a series of labels, namely arbitrary, coined, suggestive, descriptive Cheap Miguel Angel Moya Jersey , merely descriptive or generic. While many terms fit neatly into one or more categories, others along the continuum do not fit neatly into one category or the other. The stronger the mark, the greater the legal protection that will be afforded. This also means you as the trademark owner can police you mark and enforce rights with less risk of legal challenges to the validity of your marks. The further along the continuum one goes the less protection. While some categories are ID , code for Inherently Distinctive, others are not. Those that are descriptive, merely descriptive or generic terms Cheap Luciano Vietto Jersey , we suggest: Forget about it.
The best way to understand the continuum is to jump on with some real life examples. Be forewarned, some will make sense others won t! Therein lays the key to understanding the often subjective manner in which claims of trademark infringement are decided by the courts. The cases that could go either way emphasize the importance of avoiding finding your business in this situation.
Surf the Continuum with Real Life Examples:
COINED or FANCIFUL are terms that are made up to function as trademarks and are inherently distinctive.
KODAK? before becoming a famous trademark was a word which did not exist. Instead someone created or coined the term to identify the cameras and film.
ALTOIDS?, used as a mark for The Original Celebrated Curiously Strong Peppermint?
Other well known fanciful marks are EXXON?, XEROX? and CLOROX?
Caution: While coined marks can start out strong, some can be at risk of falling to the other side of the continuum by being absorbed into the every day language, becoming generic. With any mark Cheap Lucas Hernandez Jersey , selection and registration also require proper use and enforcement. Some of the more famous examples of once were, now has been, marks, are aspirin, cellophane, escalator
ARBITRARY An every day word Cheap Koke Jersey , picture or symbol in common use can be applied in an arbitrary manner to goods and services which are unrelated to the term being used as a mark.
APPLE for computers and music, as well as the famous logo of the bitten apple, is one of the world s most famous examples.
AMAZON for online retail store services. The Amazon was a river long before the Internet existed by a few thousand years. Of course, based upon the way they chased one of our innocent prior using clients AMAZON itself seems to have forgotten this fact.
Other examples are OLD CROW for whiskey, IVORY for soap, or ICE CREAM for chewing gum.
SUGGESTIVE marks are given stronger protection in the law than descriptive marks. Terms that suggest but do not describe the qualities Cheap Kevin Gameiro Jersey , ingredients, characteristics of a product are granted the same level of protection as an Arbitrary or Fanciful marks, i.e. no secondary meaning need be shown. As a result a Suggestive marks are some of the best marks of all, but are difficult to select. Without expert guidance, however, new trademark owners gravitate from suggesting to describing Cheap Juanfran Jersey , failing to understand the difference. In fairness, many courts have the same difficulty, making the line between suggestive and descriptive extremely difficult to discern, often with conflicting results.
Finding a great suggestive mark is not for the faint of heart. However, if successful, you ve found an important intersection where you can stake your claim Cheap Jose Gimenez Jersey , one where your selection meets protection.
Examples of marks held suggestive, not descriptive (see below):
ACTION SLACKS pants
CHICKEN OF THE SEA tuna
CITIBANK urban bank
CYCLONE wire fence
FLORIDA TAN tanning lotion
L EGGS women s hosiery
ORANGE CRUSH soft drink
PLAYBOY magazine
ROACH MOTEL insect trap
Q TIPS
7 ELEVEN food store chain
WRANGLER western boots and jeans
Caution: Remember no mark is static. The need to maintain proper use and enforcement policies to manage risk apply to all marks. A mark that is originally suggestive can become descriptive by usage of the public or trade. Remember QUIK PRINT? They faced this challenge before the Trademark Office.
Descriptive words which merely describe the qualities, ingredients, characteristics of a product may not be registered or enforced as trademarks unless proof of secondary meaning or acquired distinctiveness is shown. A descriptive mark may also describe the intended purpose, function or use of the goods, class of users Cheap Jan Oblak Jersey , nature of the goods, the end effect upon the user, or a desirable characteristic of the goods and services.
There are literally dozens of examples. Here are but a few compiled by Professor J. Thomas McCarthy in his famous trademark treatise on trademarks, McCarthy on Trademarks.
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