Demystifying Trademark Law: Elements, Distinctiveness, Infringement, and Fair Use Explained - Paper Example

Trademark law protects what? What is required to develop a trademark?

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Trademark law is the regulation governing trademarks that protect trademarks such as words, symbols, or phrases used to identify manufacturers' or seller's products and distinguish them from other products (Gillen, 2018). To develop rights to a trademark, the mark must be distinctive.

A trademark can be a single word, but it can be many other things. What else can serve as a trademark? List five other things that can serve as trademarks and give an example of each type of mark. Provide examples that are different from those in your materials.

Trademark extends beyond words and goes further to include colors such as Tiffany's blue color, symbols such as the golden arch, and sounds such as the melody owned by Hemglass. Additionally, it includes trade dress such as the shape of the Coca-Cola bottle, slogans, and phrases such as the 'just do it.'

Trademarks exist along a spectrum of distinctiveness. Briefly identify and explain each level of distinctiveness, whether that level receives trademark protection, and provide examples of each mark. Provide examples that are different from those in your materials.

Generic forms part of the spectrum of distinctiveness since it involves using common words for a product or a service such as an Email (Juneja, 2019). Accordingly, such terms are customarily meant to identify the source of a good or a service, and therefore they are deemed ineligible for trademark protection.

Contrarily, descriptive underlines the purpose or use of a good or service. A descriptive mark is not automatically distinctive but later gains eligibility once it becomes associated in the public's mind with the relevant goods or services. An example of a descriptive mark is 'Cold and Creamy,' associated with ice cream.

The suggestive denotes a symbolic mark that suggests or implies a good or service without clearly describing them based on distinctiveness. They include marks such as Airbus for airplanes. Consequently, they are distinctive and eligible for protection.

Arbitrary encompasses marks in which the existing words lack any relation to the relevant goods or services (Gillen, 2018). They include 'Apple' for personal computers and are inherently distinctive and thus eligible for trademark protection. Fanciful marks encompass invented words or phrases which include Kodak for Cameras and Film. They are afforded the highest trademark from courts.

If you are considering starting your own business and adopting a trademark, it is good to conduct some searching of your proposed mark before you start using it. List and explain the three main things to consider when you are searching for a trademark.

When searching for a trademark, the three vital elements include protectability, availability, and reliability. Protect ability underlines the scope of protection available for the chosen mark (Gillen, 2018). On the other hand, availability asserts the consideration of whether you will be the first to use a particular mark related to your goods or services. Ultimately, register ability entails evaluating the mark to ensure that it is not deemed improper due to it being scandalous, immoral, or likely to be confused by another registered mark.

What is trademark infringement, and what are we trying to prevent? List the factors that we consider when evaluating whether one trademark infringes on another trademark.

A trademark is the transgression of the absolute rights attached to a trademark through unauthorized use (Gillen, 2018). It aims at preventing unauthorized use by any third party on any goods or services that have been specifically registered. The key factors to consider in an infringement claim by a plaintiff include that he or she owns a good mark, the same mark has priority over the defendant's mark, the defendant's mark is likely to confuse the consumers' minds about the source of the goods offered under the party's marks.

Based on the facts presented in Trademark Hypo 1, is the trademark you are considering adopting likely to infringe on the other trademark you located? Using the trademark infringement analysis, explain why or why not.

The trademark is likely to infringe on the rights of the trademark. As evidenced, the trademark is valid as it is registered in the database and bears priority over the others that the classmates intend to write. Moreover, if registered, the mark is likely to confuse consumers' minds on the source offered under the party's mark.

There are several situations in which you can use the trademark of another without permission. List and explain the different forms of trademark fair use.

Nominative fair use is a type of service that allows another party's mark to name that party's name or goods. However, it limits unnecessary use if the mark requires the user to use it as a proper adjective rather than a noun (Gillen, 2018).

Comparative advertising as a fair use encompasses advertising, which includes a reference to a competitor's trademark. However, this does not impute proprietorship in the mark to the advertiser (Wintner, 2019).

Contrary, a trademark parody is fair use that conveys two types of messages in its use. It gives an original message, but at the same time, it is not original and instead a parody. As such, an effective parody only conveys enough of the original to allow the consumer to appreciate its effectiveness and negate infringement.

Pick one example from the 'Trademark Fair Use Examples' document, explain which type of fair use would be relevant, and explain why.

The trademark fair uses an example of the fair use document, which is relevant as it entails nominative fair use. From the example, the use of the mark 'New Kids on the Block' by the newspaper does not describe one's goods and services but rather describes the protected owner's goods and services, which underpins innovative fair use.

Why do we have three different branches of government?

The mischief behind having different government branches is underpinned by the need to ensure that there is a system of checks and balances. Therefore, each unit can respond to the actions of the other.

Copyright law protects original works of authorship from theft by preventing unauthorized copying.

References

Gillen, S. (2018). Guide to Rights, Clearance & Permissions in Scholarly, Educational, and Trade Publishing. Cincinnati: Textbook & Academic Authors Association.

Juneja, N. (2019, October 08). Why trademark distinctiveness natters? Gleam Law. Retrieved from https://www.gleamlaw.com/trademark-distinctiveness-branding/

Wintner, H. (2019, October 08). Parody under the trademark laws. Law.com. Retrieved from https://www.law.com/newyorklawjournal/2019/10/08/parody-under-the-trademark-laws/?slreturn=20200815003802