Trademark and Unfair Comp. Boston College Law School September 21, 2004 Use in Commerce.

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Presentation transcript:

Trademark and Unfair Comp. Boston College Law School September 21, 2004 Use in Commerce

Establishing Rights Lanham Act § 45 (15 U.S.C. § 1125) –Trademark. The term “trademark” includes any word, name, symbol, or device, or any combination thereof - (1) used by a person, or (2) which a person has a bona fide intention to use in commerce and applies to register … –to identify and distinguish his or her goods … from those manufactured or sold by others and to indicate the source of the goods ….

P&G v. J&J P&G Marks –Active Use SURE (deodorant) –Maintained SURE (tampons) ASSURE (shampoo & mouthwash) J&J Marks –Active Use ASSURE (tampons) SURE & NATURAL (maxi-shields)

Use requirement Policy justifications –Furthers purpose of trademark (I.D. source) –Prevents warehousing of trademarks –Provides notice to others Possible drawbacks –May cause uncertainty re: when rights attach –May result in loss of preparatory expenses

“Use in Commerce” Lanham Act § 1 (15 U.S.C. § 1051) –(a)(1) The owner of a trademark used in commerce may request registration … Lanham Act § 45 (15 U.S.C. § 1125) –Commerce. The word “commerce” means all commerce which may lawfully be regulated by Congress –Use in Commerce. The term “use in commerce” means the bona fide use of a mark in the ordinary course of trade, and not merely made to reserve a right in a mark.

DaimlerChrysler v. Bloom MERCEDES

WhenU

Administrative Details Schedule adjustment –Thursday, Sep No class Next Assignment –III.B Priority & Concurrent Use