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Trademarks Class 5

Trademarks Class 5. Secondary meaning Collective and certification marks Trademark use as basis of rights. American Waltham Watch v. U.S. Watch Co.

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Trademarks Class 5

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  1. Trademarks Class 5 Secondary meaning Collective and certification marks Trademark use as basis of rights

  2. American Waltham Watch v. U.S. Watch Co. “[T]he word ‘Waltham,’ which originally was used by the plaintiff in a merely geographical sense, now, by long use in connection with the plaintiff’s watches, has come to have a secondary meaning as a designation of the watches which the public has become accustomed to associate with the name.” [105]

  3. Smack Apparelcase OSU shirt Front: Got Seven? Back: We do! 7 Time National Champs — “with depiction of the state of Ohio and a marker noting ‘Columbus Ohio’ ” — “This shirt refers to the seven college football national titles claimed by OSU.” [not in CB]

  4. What’s the claimed trade dress? The claimed trade dress: “a classic tennis shoe profile with a sleek white leather upper,three rows of perforations in the pattern of the well-known Three-Stripe trademark, defined stitching enclosing the perforations, a raised mustache-shaped [green] colored heel patch, and a flat tonal white rubber outsole” [not in CB]

  5. Adidas and Skechers sneakers

  6. Collective trademarks and service marks • Marks used by members of an organization to identify collectively the source of their goods or services, e.g.: • REALTORfor services provided by members of the National Association of Realtors • PGAfor services provided by members of the Professional Golfers Association • VIDALIA for onions from growers in an area of Georgia

  7. Collective membership marks • Designations used by individuals to show they are members of a group • e.g., a union bug used by a unionized printing shop to show that its employees are members of a union • e.g., REALTOR to indicate the user is a member of the National Association of Realtors

  8. Certification marks • Certifies that goods or services bearing the mark meet certain criteria, e.g.: • compliance with safety standards • kosher food • energy efficiency • food regional origin, like ROQUEFORT

  9. Geographic indications • Indicates that a good: • originated from a particular geographic region, and • has characteristics that are “essentially attributable to its geographical origin”

  10. Thoroughbred Legends v. Disney “A plaintiff in a trademark infringement lawsuit must not only show that it used its mark in commerce, but also that it used the mark as a trademark, whether the mark is registered or not.” [126]

  11. Plaintiffs fail “Plaintiffs fail to show that the alleged ‘RUFFIAN’ mark was in fact ever used to signify origin to customers and competitors.” [127]

  12. Why a use requirement? • “[P]revents entrepreneurs from reserving brand names in order to make their rivals’ marketing more costly” • “Public sales let others know that they should not invest resources to develop a mark similar to one already used in the trade.” • “Only active use allows consumers to associate a mark with particular goods and notifies other firms that the mark is so associated.” — Zazu Designs v. L’Oreal, S.A. (7th Cir.1992)

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