Trademark Law Jody Blanke, Professor Computer Information Systems and Law Mercer University, Atlanta.

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Presentation transcript:

Trademark Law Jody Blanke, Professor Computer Information Systems and Law Mercer University, Atlanta

Trademark Law Combination of federal and state law Authority of federal law derives from regulation of interstate commerce Authority of state law derives from regulation of intrastate commerce

Protects Dual Interests Protects trademark owner’s interest in brand name value and good will Protects consumers from confusion

Trademarks can be … words Coca Cola phrases “Have it your way” symbols sounds

586 Intel learned that you cannot trademark numbers themselves Pentium can be trademarked You can trademark 7-Up Three-peat

Generics Dixie Cups Frisbee Hi-Liter Kitty Litter Kleenex Magic Marker Ping-Pong Popsicle Scotch Tape Sheetrock TV Dinners Wiffle Ball Cellophane Corn Flakes Dry Ice Lanolin Mimeograph Monopoly Pogo Stick Raisin Bran Shredded Wheat Thermos Toll House Trampoline

Strength of Protection 1. Fanciful e.g., Kodak, Atari, Exxon 2. Arbitrary e.g., Apple, Amazon 3. Suggestive e.g., Compaq, Dairy Queen 4. Descriptive (must acquire a secondary meaning) e.g., Computerland, Ben & Jerrys 5. Generic e.g., aspirin, elevator

Trademark Infringement “Likelihood of confusion” standard Court looks at factors like similarity of goods sophistication of consumers length of time that mark has been used wrongful intent

Lexus/Lexis Mead Data Corp. sued Toyota in 1989 Toyota won court found little chance of confusion perspective luxury car buyer won’t come home with a legal database instead and vice versa

Trademark Dilution Federal Trademark Dilution Act of 1996 prior to states had anti-dilution laws Must show “famous” mark “actual dilution” Dilution by blurring Dilution by tarnishment

Microsoft Sandwich Shoppe Makes a great sandwich Becomes very popular “Let’s go to Microsoft” dilution by blurring? But after the very unfortunate e-coli incident dilution by tarnishment?

Exemptions to FTDA Fair use in comparative advertising Noncommercial use News reporting and commentary

Lexus/Lexis Revisited Would there be infringement today? Would there be dilution today?

Web Domain Names New frontier for trademark law Early “entrepreneurs” registered Today we call them cybersquatters

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Contested Domain Names