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Looking to name and brand your business or products? In order to do so, it helps to understand the laws on trademarks. In this presentation from New Leaf Legal, you will learn what qualifies as a trademark under U.S. law and what protections are enforced.
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“source identifier” of goods and services › Consumer trust and loyalty › Consumer perception, – can easily ID
goods/services they want, consistent quality. Words and design (logos) most common
› sound, color, packaging possible › Thresholds higher for certain types
A trademark is NOT: › Art – just b/c you created it, doesn’t mean it’s a
trademark. › advertisement
Generic: Not protectable › Tissue v. Kleenex › Never use brand as noun › Asprin, Thermos
Descriptive › Boston Marketing, Electronics Land › Possible solutions: Disclaimers, Supplemental w/ secondary
meaning Suggestive
› Boston Market, Circuit City, Haystack Arbitrary
› Apple Fanciful
Other factors: › Marketplace impression
How do people perceive your mark? Strawberry Fields
Tea, cereal fertilizer
› Culture Color Symbols/gestures Translations (Nova)
Class/industry
› Some space to grow, deference by USPTO › When searching: how “crowded” is your space? Certain words that mean nothing in other industries may
be “descriptive” in your industry “i”, “green,”
“Use in commerce” for full reg › Specific – no ads, alone (no sentence), certain reqs for
industries (clothing) › Each class, examples w/i class acceptable
Perpetual w/ continued use, must “check in”
Registration › Exclusivity › Nation-wide
presumed › Basis for int’l filing › Incontestability (5
yrs) › Statutory damages
(3x) › ® › Intent-to-use
Common Law › Only via actual and
continued use › Geo limits › TM only › Defend rights, not
assert.
Policing: google alerts, C&D Use it or lose it Be consistent, esp w/ logos.
› “Redesigns” need new registrations › Slogans
What is your IP strategy? For enforcement?
“Likelihood of confusion” (some factors) › Consumer perception/actual confusion –
not about brand owner › Side-by-side/initial impression › Phonetics, letter changes not strong
argument › Intent of defendant › Channels/customers › Sophistication of consumers
Shannon (Jamieson) Sadowski [email protected] newleaflegal.com Phone: 617-398-7566