A trademark can be an essential platform for strengthening a company’s goodwill. A trademark entails any symbol, word, or phrase that can be identified with firm’s products and services. These items might be qualified as trademarks when they gain a signifying meaning among the company’s customer base (Maggs and Schechter 4). Nonetheless, the misuse of this proprietary asset can result in lack of legal protection and confusion among customers since it might be difficult to deduce the origin and identity of a particular product. As such, some companies have resorted to unconventional means of protecting their trademarks. This paper will discuss the trademark problems facing the assigned case study of VELCRO with reference to relevant statutory …show more content…
As such, the company’s attempts to protect the inappropriate use of VELCRO trademark might be futile. According to the amended U.S. Trademark Act of 1946, any registered mark, symbol, or word that becomes a generic trademark is entitled to cancellation (17). Therefore, the mark will lose its legal protection under the Trademark Act once it becomes a generic mark. It means that VELCRO will lack the legal right to sue any infringers of the VELCRO mark based on the Trademark Act of 1946. In Dial-A-Mattress Franchise Corporation v. Anthony Page et al., the judge held that the plaintiff could not register the name “mattress.com” as a trademark; thus, the suit was subject to rejection. In this case, the judge reasoned that the word “mattress” was not exclusive to the plaintiff’s products alone as it could also encompass the competitors’ products. Further, the word would not sustain any legal protection if infringers used it with a spelling mistake such as “mattres.” A similar reasoning might apply in VELCTRO’s case. To enumerate, the word “hook-and-loop” might mean various things other than VELCTRO’s brand. As such, the company might lack legal protection in case of
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v. VIP Prods., LLC 666 F. Supp. 2d 974 (Mo., 2008) Anheuser-Busch makes a distinction between confusing and non-confusing parodies, the latter being protected as a parody. The important factors in the case were that the price point of the products was the same, they were directly competing goods and the survey showed that there was a level of confusion (30.3% were confused), in addition, consideration was placed on irreparable harm caused by the defendants use of the mark, the priority lay with the first to register the trademark, lastly the District Court considered public interest, i.e. whether the public was deceived. Similarly in Starbucks Corp v. Wolfe’s Borough Coffee Inc., 588 F3d 97 (2d Cir. 2007) the court distinguished Louis Vuitton S.A. v Haute Diggty Dog, LLC, 507 F.3d 252 (4th Cir. 2007) by holding that if (as in the Louis Vuitton case), the mark is used in non-competing goods, the defendant conveyed that it was not the source of the plaintiffs product and if the actual use of the mark does not impair the distinctiveness of the plaintiff’s mark there may be an argument in favor of the defendant, however, if the defendant’s humor is not conveyed to the public, and does not increase the public identification of the plaintiff’s mark with its mark it will fail to establish
Nancy and Jennifer are worried that changing their emblem will negatively impact their market status. By seeking advice from comparable businesses which have already gone through rebranding, it will be valuable to the proceedings. Benchmarking will allow them to determine the best alternatives and make their labor
Businesses filing the claim must also show that the business use of the trademark is expected to cause uncertainty as to the association, relationship or the affiliation among them. To establish a violation of the Lanham Act for either a registered mark under 15 U.S.C. § 1114, or an unregistered mark under 15 U.S.C. § 1125(a), the plaintiff must demonstrate that (1) it has a valid and legally protectable mark; (2) it owns the mark; and (3) the defendant's use of the mark to identify goods or services causes a likelihood of confusion.( A&H Sportswear, Inc. v. Victoria's Secret Stores, Inc., 237 F.3d 198 (3rd Cir.
With a trademark, a company can register their logo, which in turn cannot be replicated in any form without express permission from the trademark holder (Intellectual Property Office of New Zealand, 2011). After building the reputation of its brand, a company can clearly define itself in a competitive marketplace with a trademarked identity that is unlike any of its competitors, giving it a clear point of difference and customer trust that will directly translate into increased sales and brand loyalty (Philpott, 2004, pp. 171 –
A trademark is most often known as a symbol, word, or phrase that is used in commerce to distinguish a particular seller’s wares from that of another ("Trade-marks Act")( Wensley & Caraway). The protection of trademarks within the Canadian trademark law is not only emphasized within the Trade-marks Act, but also decreed under common law, similarly known as the rulings dictated by federal judiciaries ("Canadian trademark law"). This implies that trademarks can either be registered under the Act, or safeguarded by a common law action called “passing off.” Passing off is a crucial mean of protecting a registered trademark through section 7(b) and 7(c) of the Act that deliberates the tort of such a regulation ("Canadian trademark law"). Both statutes ensure the protection of not only trademarks but also certification marks, distinctive marks, proposed marks, service marks, and distinguishing guises against perpetrators who either defraud the goodwill of these marks or generate confusion in relation to it. For a plaintiff to prove that trademark infringement has occurred, he/she needs to illustrate either the existence of goodwill within the market area, that the defendant’s use of mark or trade name exemplified the misrepresentation of wares, or that such falsification caused harm to the organization ("Canadian trademark law"). The owner of the trademark has an advantage through Section 19, 20, and 22 of the Act, which sanction for the exclusive rights to the mark throughout Canada in relevance to the products and services it was generated for, prohibiting the distribution of wares in association with a confusing trademark by unapproved individuals, and/or obstructing non-owners from using the mark in a manner that may result in the v...
A trademark is one of the utmost valuable assets that an individual can possess. A trademark is not just a logo or a name, and it’s worth is not limited to the mark as such. A trademark is utilized in order to differentiate the services and goods of one trader to another. A trademark authorizes a business to exploit the market in order to entice customers, who permits them to recognize the marked good and likewise,
In the absence of registered trade mark rights, case law suggests as a general principle, that mere similarity of goods is not enough for an actionable wrong to occur. Passing off derives from the common law action deceit which is the civil action for fraudulent misrepresentation. Passing off is a non-statutory cause of action that has developed over the years through case law and has changed considerably overtime. Passing off came into existence long before trademarks became registerable and has always been available at common law for marks refused registration, not registered or ineligible for
In brief, Canada’s history with trademarks can be traced back to pre-confederation in 1860, whereby the legislative council and Assembly of Canada adopted An Act Respecting Trademarks. Thereafter, the Trade-marks Act which is still in use today was enacted in 1953. Since that time, however, only minor changes have occurred within this Act. For instance, in 2005, the Canadian Intellectual Property Office (CIPO) wanted to modernize the Trade-marks Act. This included, but was not limited to changes to the regulation of non-traditional trademarks. This very brief historical overview shows Canada’s reluctance to make radical changes to the area of trademark law. This in turn creates a disadvantage for potential trade mark owners in Canada, as the law is not as comprehensive to cover areas such as non-traditional signs. Markets are constantly changing and with the innovations in technology, companies need these new and innovative ways to distinguish themselves in new ways to stay current in the marketplace and attract customers. Therefore with Canada’s stagnation in making changes in the law to in recognition of globalization and technological innovations, it puts Canadian companies at a disadvantage. However, with the passing of Bill C-35 it can be argued that slowly but surely, Canada will be on par with other jurisdictions around the world. This will shown by analyzing the current trademark law in the EU and US.
What’s in a name? Certainly, it can be tied to product identification, brand loyalty and a tremendous amount of revenue. Companies protect their trademarks knowing that public perception must be positive, controlled and maintained. Without control over your name, it seems self-evident that doom awaits. According to Jamie Lundi, “copyright genericide can occur when the benefits to society of copyright protection (i.e. the incentive to create) cease to outweigh the costs” (131). Truly, copyright protections won’t apply if the material becomes so used as to become commonplace. In his article, Pike comments upon rules and regulations that protect a company from losing creative control over
...esses expand into foreign countries, many businesses find there are already companies with the same trademark. However, focusing on the domestic market, recovery for trademark infringement must show that (1) it possesses the trademark; (2) the defendant used the mark in commerce; (3) the defendant’s use of the mark was to benefit; and (4) the infringer is confusing customers (Barnes, Dworkin & Richards, 2011). As China expands industrially and technologically, many U.S. and European companies fear trademark infringement. Most large companies have done well at establishing and maintaining international trademark protection (e.g., Coca-Cola, Apple, and McDonalds), whereas small to medium companies struggle with copycat goods and services. Not to get confused, trademark infringement happens domestically with products like Nike footwear and Ralph Lauren clothing.
However, there are several front burner issues such as outsourcing, brand name, and differentiation between competitors. First, the company outsources the majority of its raw materials for manufacturing. One of the potential issues Under Armour faces is supplier bargaining power. As a result, suppliers as well as the raw materials used to produce materials could increase substantially. This could result in fewer sales based upon the consumers desire to purchase the product or not. Second, Under Armour faces issues with its brand recognition. Several commonly known products such as Kleenex, Zipper, and Dumpster are terms which are becoming classified as generic terms. Surprisingly, Under Armour has not done anything at this point in time. However, if they want to secure the brand name, they need to react and do something quickly. Lastly, the organization suffers from brand differentiation with other competitors such as Nike and Adidas. Consumers are mixing up certain attributes of Under Armour with Nike or Adidas. For example, Nike refers to its technology within its products as “Dri-Fit.” However, they in reality are buying Under Armour clothing which is referred to as heat gear, cold gear, or all season gear. The company needs to look into ways of making their brand stronger, which could be by developing something new or utilize materials that are not easily accessible to all
What is branding? Branding has been advocated as a potentially successful response to heightened market concentration; it offers the possibilities of centralized control and format standardization, and an added value or cost driven strategy can be used to differentiate the retail offering and reinforce market positioning. Brands provide informational cues for buyers about the store's merchandise quality, and favourable images of brands positively influence patronage decisions." Successful retail branding can provide a form of "insulation" against price competition and states: "Where the store brand name is itself a brand name based on a quality appeal, it will be easier to position the own brand as a premium product under the same name" (Schmidt, R., & Pioch, E., 2005). Further as consumers, we tend to think about brands as symbols like the Nike swoosh or McDonald’s golden arches; the working definition of a brand is broader. A brand is usually defined as a name, logo, symbol, words, or combination of these, intended to distinguish a particular company’s offerings from those of competitors. In this sense, the modern use of the word “brand” harkens back to its older meaning which is a distinguishing mark or burn to identify wine, livestock or other commodities by their owner (Koehn, N., 2013).
In conclusion, design laws in relation to intellectual property have changed and developed to suit today’s globally expanding technology and communication. While these laws have not changed as frequently and dramatically as other sections of Intellectual Property, it is proven to update as needed. The upcoming changes in regulation for easing design’s registration is a step in the right direction for businesses although it can be difficult to manage. It encourages innovation in different industries, but doubtfully will stop counterfeiting on a large scale. Changing design regulations implements secrecy in relation to developing the best option for an entire society (i.e. health products), but essentially allows a creator to take control, ownership and usage of his or her new and distinctive work.