Trademark Prevent Misappropriation of Goodwill Prevent Consumer Deception about Source

Types of Words Fanciful – Exxon Kodak Arbitrary – Tea Rose Suggestive – Roach Motel Descriptive – Beef n’ Brew Generic – Yo-yo

Lanham Act Section 45 The term “trademark” includes any word, name, symbol, or device, or any combination thereof – used by a person, or which a person has a bona fide intention to use in commerce and applies to register on the principle register established by the Act to identify and distinguish his or her goods, including a unique product from those manufactured or sold by others and to indicated the source of the goods, even if that source is unknown

Types of Words Arbitrary – protected Fanciful- protected Suggestive – protected Descriptive – protected only with secondary meaning Generic – unprotected

Two Pesos “On the other hand, adding a secondary meaning requirement could have anti-competitive effects, creating particular burdens on the start-up of small companies. It would present special difficulties for a business, such as respondent, that seeks to start a new product in a limited area and then expand into new markets. [the Court goes on to say that the old rule could] deter the originator from expanding into and competing in these areas”

New Kids on Block 1) the product in question can’t be readily identified without using the Trademark 2) you use only so much of the mark as necessary to identify the product 3) you do nothing to suggest sponsorship or endorsement by the TM holder

Bette Midler: California Statute Name, voice signature, likeness Name, voice signature, likeness

Rogers Test Trademark use will only violate the Lanham act if the use of the trademark has 1) no artistic relevance to the underlying work OR, 2) if it does have relevance, it misleads as to the source it misleads as to the source