Trademark and Unfair Comp. Boston College Law School October 14, 2004 Abandonment.

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Presentation transcript:

Trademark and Unfair Comp. Boston College Law School October 14, 2004 Abandonment

Lanham Act §45 (15 U.S.C. §1125): –Abandonment. A mark shall be deemed to be “abandoned” when either of the following occurs: (1) When its use has been discontinued with intent not to resume such use. Intent not to reuse may be inferred from circumstances. Nonuse for three consecutive years shall be prima facie evidence of abandonment.... (2) When any course of conduct of the owner, including acts of omission as well as commission, causes the mark to become the generic name for the goods … or otherwise to lose its significance as a mark.

Abandonment Types of abandonment –Non-Use –Assignment in Gross –Naked Licensing –Failure to Police

Silverman v. CBS 870 F.2d 40 (2d Cir. 1989)

Trademark / Source Nexus Arbitrary (E.g. NIKE) Source (E.g. Nike, Inc.) Descriptive (E.g. ALL BRAN) Source (E.g. Kellogg, Inc.) Generic (E.g. aspirin) Source (E.g. Bayer, Inc.) Strong Weak None

Abandonment Nonuse Trademark (Amos & Andy) Source (CBS, Inc.) Trademark (Amos & Andy) Source (CBS, Inc.) Trademark (Amos & Andy) Source (CBS, Inc.)

Sports Teams

Abandonment Trademark (HEARTLAND) Source (Sears, Inc.) Assignment in Gross Trademark (HEARTLAND) Source (Clark & Freeman Corp.) ? ?

Abandonment Trademark (DA VINCI) Source (Barcamerica) Naked Licensing Trademark (DA VINCI) Source (Barcamerica) Licensee (Renaissance) ?

Abandonment Failure to Police Trademark (BADGER) Source (U.W.) Trademark (BADGER) Source (U.W.) Trademark (BADGER) Source (U.W.)

Administrative Details Next Assignment –VI.A.1 - Likelihood of Confusion – Basic Factors