Copyright Issues
Copyright (and Patent) v. Trademark
-all a form of intellectual property
patent=idea
copyright=expression of that idea
trademark/service mark =branding or marketing of that idea
-requires 2 things before you can get things trademarked
-distinctive
-on the face its unique
-you’v put enough advertising into it that it seems distinct
-no likelihood of confusion
5 levels of distinctiveness
-fanciful: weird word no one has heard of
-arbitrary: a word or symbol that is commonly used
-suggestive: middle ground IE: coppertone, jetblue
-descriptive: word that is descriptive of the purpose or characteristics of the goods IE sweet tarts (protected after 5 years of continued use of the product)
-generic: the word is literally just what it says IE: Apple as a fruit
infringement-likelihood of confusion
-visual similarity
-similarity of goods or services
-similar physical area and manner of concurrent use
-decreased discernment of customers
-strength of the mark (fanciful>arbitrary>suggestive)
-evidence of wrongful intent
-actual confusion
infringement-dilution
use of a mark in a way that weakens its identity or harms its reputation or has the clear potential to do so
defenses
-abandonment
-genericide: trademark is used over time in a way that it becomes generic
-nominal fair use
cybersquatting
-domain names
Leave a Reply