Jody Blanke, Professor Computer Information Systems and Law 1.

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Presentation transcript:

Jody Blanke, Professor Computer Information Systems and Law 1

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 2

Protects Dual Interests Protects trademark owner’s interest in brand name value and good will Protects consumers from confusion 3

Trademarks can be … Words Phrases Symbols Sounds Colors Smells 4

586 Intel learned that you cannot trademark numbers themselves Pentium can be trademarked You can trademark 7-Up Three-peat 5

Generics 6

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 7

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 8

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 9

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 10

Trademark Dilution Federal Trademark Dilution Act of 1996 prior to 1996, 28 states had anti-dilution laws Under the Trademark Dilution Revision Act of 2006, must show “famous” mark – as "widely recognized by the general consuming public of the United States” “likelihood of dilution” 11

Google Sandwich Shoppe Makes a great sandwich Becomes very popular “Let’s go to Google” dilution by blurring But after the very unfortunate e-coli incident dilution by tarnishment 12

Lexus/Lexis Revisited Would there be infringement today? Would there be dilution today? 13

Web Domain Names New frontier for trademark law Early “entrepreneurs” registered Today we call them cybersquatters 14

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Contested Domain Names