TRADEMARKS

Definition

A trademark is any word, name, phrase, symbol, logo, image, device, or any combination of these elements, used by any person to identify and distinguish his or her goods from those manufactured or sold by others and to indicate the source of the goods.

Trade DressDefinition: the overall visual appearance of a

product or its packaging. the three-dimensional shape, graphic design, color, or

even smell of a product and/or its packaging

Trademark “distinctiveness”

1. Arbitrary or fanciful: inherently distinctive

2. Suggestive: marks that suggest the nature of the product or business

Distinctiveness, cont.

3. Descriptive: describes the product & has secondary meaning

4. Generic: common descriptive name, no secondary meaning

Acquiring Trademark Rights

1. Registration with the United States Patent & Trademark Office (“USPTO”)

2. Registration with a state trademark office

3. Actual use in the marketplace

Likelihood of Confusion

Issue: whether the similarity of the marks is likely to confuse consumers about the source of the products, or deceive as to the affiliation, connection, or association of the junior user with the senior user?

Likelihood of Confusion Factors

(1) the similarity or dissimilarity of the marks in their entireties as to appearance, sound, connotation and commercial impression;

(2) the similarity or dissimilarity and nature of the goods or services;

(3) the similarity or dissimilarity of established, likely-to-continue trade channels;

(4) the conditions under which and buyers to whom sales are made, i.e., "impulse" vs. careful, sophisticated purchasing;

(5) the fame of the prior mark (sales, advertising, length of use);

Likelihood of Confusion Factors

(6) the number and nature of similar marks in use on similar goods;

(7) the extent of any actual confusion; (8) the length of time during which there has

been concurrent use without evidence of actual confusion; and

(9) the variety of goods on which a mark is or is not used (house mark, "family" mark, product mark).

Consumer Survey

Consumer Survey

Consumer Survey

More examples

Goldfish & Budweiser

More Examples

Store Brands

Right of Publicity

VannaWhite