Trademarks, Service Marks and Copyrights are rights associated with an intangible things known as intellectual property.  While the rights belong to the holder of the property, there is a secondary purpose which is protection of the public.  That policy is a crucial consideration in analyzing legal questions involving these forms of property.

Trademarks are described by the PTO as any word, name, symbol, or device, or any combination, used, or intended to be used, in commerce to identify and distinguish the goods of one manufacturer or seller from goods manufactured or sold by others, and to indicate the source of the goods.  A service mark is the same thing except it distinguishes services rather than products.

Trademarks and Service Marks can be registered with the PTO but it is not required for use in the United States.  The registration of valuable marks can be useful for establishing priority in the event of a dispute over marks; however, there are common law protections for the use of marks and registration is only one small part of proof.  A registered mark uses the ® symbol.  Unregistered marks carry either TM or SM.

For a mark to be valid, it must be used in commerce.  Individuals cannot preemptively register names hoping to one day cash in on a business desiring to use the mark.  Trademarks never expire so long as they are used in commerce.  It is the duty of a mark-holder to defend and protect their mark from infringing use.

Failure to do so can prove costly.  Do you know the name of a moving stair lift?  An insulated food container?  Did escalator and thermos come to mind?  Once upon a time, those could have been trademarked names giving the holders tremendous marketing advantage, but improper use and protection has led to them becoming "generic" names.  Kleenex® is the example of how to do it right.  Kleenex is the registered trademark of Kimberly-Clark branded facial tissues.  Although Kleenex is used generically by the public, Kimberly-Clark's competitors are barred except for "fair use."

Fair use is a doctrine which allows the limited use of marks and copyrighted material.  In simplest terms, fair use restricts using protected material to circumstances of comment or comparison.  The protected material must be properly attributed to its original source, may only use as much protected matter as is necessary for the comment or comparison, may not co-opt its goodwill or inherent value, and absolutely may not deceive the public as to origin of goods or services.

How's it work in practice?  I can quote a portion of an AP article on my blog, crediting the author and source paper, then using it to bolster my own position, or alternatively distinguish it from my own opinion.  I can create a television commercial that tells the viewer about an independent study that says my car brand is better than a competitor.  I can publish a book discussing the public sporting events of a baseball league so long as I make it clear that it's my own work, neither sanctioned nor endorsed by that league.

What I cannot do is copy someone else's work and "palm it off" as my own or vice-verse.  Everyone knows about plagiarism.  The more flagrant and widespread misappropriations of intellectual property are "knock-offs."  Duplicating writings, musical performances, films, designer goods, trademarks and service marks then placing them into commerce with the intent of deceiving the public as to their source.

Still as nefarious is the "wink-wink" knock-off.  The seller doesn't claim a different origin, nor does the buyer claim to be deceived.  There is a collusion between the two for a transaction over a product that appears very similar if not identical to a protected product.  Despite the informed consent, that is also an improper transaction because it trades upon the goodwill of the protected product and thereby dilutes its goodwill and value.

United States law allows a copyright to the authors of “original works of authorship,” including literary, dramatic, musical, artistic, and certain other intellectual works, both published and unpublished.  Copyright is a very broad protection.  It is simple to give notice of copyright by including the date of first publication, the © symbol and author's name.  An unpublished work may be protected through registration in the United States Copyright Office.

© William Hudnall 2011

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