In the United States, it is not registration, but actual use of a designation as a mark that creates rights and priority over others. Thus, the rule is that ownership of a mark goes to the first-to-use, not the first-to-file. That being said, trademark ownership is not acquired by federal or state registration, although registration […]
By: Tyler Hampy Pursuant to the well-established principles of equity, a patentee seeking an injunction against an infringer must satisfy a four-factor test before a court may grant such relief. The patentee must demonstrate: (1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate […]
By: Widerman Malek Team Is a “trade name” the same thing as a “trademark?” This is a topic that seems to give people trouble. The Lanham Act offers some help to distinguish the terms. By definition, a “trade name” is any name used by a person to identify his or her business or vocation. […]
In my last post, I discussed the ability to trademark generic terms. This post focuses on trademarking geographic terms. In the United States, geographic terms can be registered and protected as trademarks identifying a single commercial source if certain conditions are met. Geographic terms have traditionally been very important in identifying the source and […]
In trademark law, marks are placed along a continuum of distinctiveness. If a mark is classified as not being inherently distinct, the mark must acquire distinctiveness in consumers’ minds to achieve trademark status. That acquired distinctiveness is called a “secondary meaning.” Secondary meaning is a new and additional meaning that attaches to a mark. […]
The Federal Trademark Dilution Act (“FTDA”), embodied in Section 43(c)(1) of the Lanham Act, provides that famous marks are eligible for federal protection when a third party’s use of the mark dilutes the famous mark’s distinctiveness, even in the absence of competition, likelihood of confusion, mistake, or deception. Protection against dilution does not exist to […]
By: Tyler Hampy As mentioned in my last post, this post will continue the discussion on the fair use doctrine. Specifically, this post will discuss whether parodies of copyrighted works can be considered fair use. To recap, the fair use doctrine permits the legal use of copyrighted material without first acquiring permission from the copyright […]
To prove copyright infringement, the plaintiff must show that it owns a valid copyright and must establish that the defendant engaged in the unauthorized copying of the work protected by the copyright. “Copying” refers to the act of infringing any of the exclusive rights that accrue to the owner of a valid copyright under 17 […]
By: Tyler Hampy To begin, what is unfair competition? Although the courts have had little success in defining unfair competition in the abstract, Black’s Law Dictionary defines unfair competition as dishonest or fraudulent rivalry in trade and commerce, specifically, the practice of endeavoring to pass off one’s own goods or products in the market […]
