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Trademarks

A trademark is a symbol (i.e. word, phrase, design, image, sound or even color) that is used by a person in commerce to indicate the source of his goods and distinguish them from the goods made or sold by others. It allows the seller to distinguish himself in the market by accumulating goodwill and positive associations toward the brand. A trademark attorney may help a client register a trademark, logomark or servicemark. They will probably also be somewhat involved in the policing of the mark. In order for the trademark to stay valid, it is the duty of the mark holder to police the mark by being aware and looking out for anyone using his or her mark or similar marks. If they are not properly vigilant they may lose the mark, which leads to the loss of the accumulated good will. The strongest marks are those that are inherently distinctive by being arbitrary or fanciful. The weakest are those that are generic and merely designate the category of goods or services as opposed to the source of the product. Trademark attorneys may advise clients on trademark selection in order to create the strongest marks and will give advice on the protectability of the client’s marks.

There are numerous types of trademarks including trade dress, service marks, collective marks and certification marks. Trade dress consists of the total appearance of the product and its overall image. Everything together that identifies the product to the buyer is part of the trade dress. A service mark is the same as a trademark except its purpose is to identify the source of services instead of goods. Collective marks are used to identify the members of certain organizations or associations from non-members (ex. Ohio dairy farmers versus all other dairy farmers). Certification marks are used by a person other than the owner to certify to potential buyers that the goods or services meet a certain set of standards set by the mark’s owner.

Trademark law is designed to keep communication clear between sellers and buyers. Without trademark law, those in business could trade on the success of others by selling goods or services under the names of popular sellers and it would be difficult for potential buyers to distinguish between the goods they want to buy and the counterfeits. Thus trademarks allow buyers to rely on the reputations of the sellers.

Trademark law is covered by the Lanham Act, a federal trademark statute. The Lanham Act prohibits trademark infringement. A trademark attorney may be asked to assist a client whose mark is being used in a way that is likely to cause confusion about the source of the goods. The Lanham Act also bans dilution. Dilution occurs when a famous mark is used for goods that would not normally be associated with that mark (ex. Rolls-Royce indigestion aid). The owner of a famous mark such as Rolls Royce or Tiffany’s may come to a trademark attorney for help in obtaining an injunction to prevent other users from using the famous mark in such a way that reduces the “distinctiveness” of the mark. The Lanham Act imposes liability for infringement of unregistered mark, for false designations of origin, and any false advertising that causes competitive injury. A trademark attorney must be aware of all relevant rules. Trademark attorneys may also help a client with using, licensing, and keeping a trademark active.

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