What do trademark rights do for me?
Why Trademark Rights?
Intellectual property right trademarks.
A valid trademark, is a form of intellectual property right that gives the owner the right to prevent
others from subsequent use of a confusingly similar mark for goods or services that are closely
related to the goods or services sold using the mark.
Three critical trademark elements
These three critical elements – priority, confusing similarity, and competitive proximity – are more fully described as follows:
Priority of use generally controls the outcome in trademark disputes. Thus, even a prior unregistered user whose use predates both the first use data and application filing date of a federally registered mark will prevail over the federal registrant and generally retain the right to use the mark in the same geographic market area.
Evaluation of similar trademarks
Similarity of marks is evaluated on the basis of the overall impression conveyed by each mark. Marks do not have to be identical for trademark rights to be infringed, and variations between marks may or may not eliminate the likelihood of confusion depending on the extent to which the variation has a dominant effect on the overall impression.
Variety of factors courts look at
Courts typically look at a variety of factors, including visual appearance, pronunciation, connotation, commercial strength of the
mark, and consumer sophistication.
Trademark rights & direct competitors
Goods and services that are unrelated can generally be sold under similar or even identical marks (e.g., DELTA Airlines and DELTA Faucets). This this does not mean trademark rights only apply against direct competitors. Rather, courts typically look to whether the products or services in questions are sufficiently similar or related in function and market focus such that the likeliness in the marks is likely to lead to customer confusion.
Remedies for direct infringement
In addition to remedies for direct infringement, the owner of a “famous” mark that has, through long use and aggressive advertising, become widely recognized beyond the confines of a particular market, also enjoys protection under federal and state statutes against “dilution” –
meaning that the mark cannot be used by others on any goods or services, whether or not related, if such use will operate to tarnish, blur or otherwise diminish the power of the mark to refer
exclusively to its “famous” owner. Federal dilution protection has been held to apply generally only to truly famous national and international marks, but state dilution statutes may provide broader protection, depending on the mark and the state.
Trademarks & licensing arrangements
Trademarks are assets which can generate cash as well, through licensing arrangements, for example. Trademarks also can be pledged as collateral in financing transactions.