Many of you probably watched the Oscars Sunday night and rooted for your favorite movie or actor. But have you ever thought about the work done behind the scenes by producers, set designers, and yes, even attorneys? For example, did you know that the Academy of Motion Picture Arts and Sciences have trademarked the word “Oscar”? A lawyer was probably behind that initiative.
What is a trademark?
A trademark is a word, name, symbol, figure or device that identifies and distinguishes the goods of one seller from the goods of other sellers. Examples of trademarks are NIKE for shoes, SHELL for gasoline and McDonald’s Golden Arches for restaurant services.
Distinctive
To become a protected trademark, a mark must be distinctive. That means, it must distinguish the seller’s goods from the goods of its competitors. Distinctiveness depends on what the mark is and the goods with which it is used. For example, the word apple cannot be used as a trademark to sell apples because it does not distinguish one seller’s apples from the apples of its competitors. However, when used in relation to computers, Apple is a distinctive mark that distinguishes one seller’s computers from its competitors computers.
Classification
Trademarks are grouped into one or more classes. For example, a trademark can be classified as paper goods, mechanical goods, jewelry, furniture, or clothing. The Academy of Motion Picture Arts and Sciences has trademarked the word “Oscar” under the classification of “entertainment and educational services”. A trademark is only protected within its class. So, for example, only the Academy can use the word “Oscar” in connection with entertainment and educational services. But, it is feasible that a different entity could use the word Oscar in connection with a different class of goods, such as automobiles.
Establishing Trademark Rights
Trademark rights arise through the use of a mark in commerce that is sufficient to establish recognition of the mark among relevant consumers. For example, merely selling a few bottles of product to friends and family is not sufficient to link the mark with the seller in the minds of consumers, and therefore, does not establish trademark rights.
The best way to establish trademark rights in the U.S. is to register your mark with the U.S. Patent and Trademark Office (USPTO). Formal registration has significant benefits, including (1) notice nationwide of your claim of ownership of the mark, (2) the right, after continuous use of the mark for five consecutive years after registration, to have the registration become incontestable, and (3) enhanced remedies if a competitor uses your mark.
For more information related to trademarks, feel free to contact one of our attorneys at http://deblasiolawgroup.com/contact.php
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