Entertainment & Intellectual Property
Trademark
Below is a brief overview of trademark law, and should not be relied upon as a complete statement of the law, rights, liabilities, or as legal advice. How the law applies to each situation and the outcome varies greatly depending upon the facts of each individual case.
What is a Trademark?
A trademark is a word, phrase or symbol (such as a logo) which identifies the source of goods or services. Trademark protection may also extend to identifying characteristics such as the shape of a product or its packaging. Trademark protection is not available for all names or identifying symbols, however. The mark must either be “distinctive” or attain “secondary meaning” for it to be eligible.
It is vital for every potential business entity or individual who plans on conducting business not only to protect their mark, but also to conduct an exhaustive search prior to adopting a name, phrase or symbol as a mark. This is not just to avoid the possibility of suit, but also to ensure that a business does not lose its customers, client base or reputation due to a name change.
Why Register?
A mark that is not registered is entitled to only limit protection, and the enforcement may be available only in a restricted geographic area. Also, the remedies available for the unauthorized use of a signifying name, phrase, logo or other such mark are curtailed if the mark is not registered with the United States Patent and Trademark Office. In short, while there are laws which may protect an unregistered mark, these offer little protection compared to that gained through federal registration.
It is also possible to register a mark with the State of Florida, but such registration only affords protection within the state, and cannot be used to prevent or stop an ongoing use of the same or similar mark which is being used in other states.
The benefits of a federal registration are not just punitive, but are also preventative. Once a mark is registered with the United States Patent and Trademark Office, the mark (as well as the owner of the mark) can easily be found through the USPTO’s website. This will make your business more accessible, and it serves as notice that the mark is unavailable for use by others.
What is Trademark Infringement?
Trademark Infringement is the unauthorized use of another’s mark or the use of a confusingly similar mark. The standard for determining whether a mark is being infringed is “likelihood of confusion”. Because of this standard, the marks do not need to be identical, or even spelled the same, to be infringing.
- A business may be forced to change its name, phrase or logo.
- A business may be forced to defend a trademark infringement suit, which could result in:
- An award of three times the plaintiff’s actual damages, as well as attorney’s fees and costs.
- An injunction prohibiting the sale or distribution of good bearing the infringing mark.
- Impoundment and/or destruction of the infringing goods.
- Infringing use does not have to be intentional, but greater damages are available if it can be shown that the infringement was willful.
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