Trademarks have been used for as long as products have been offered for sale. They can take on many names, forms, shapes, and colors and can identify a soft drink, a shoe, a sandwich, a car — the possibilities are endless. The majority of successful consumer products are identified throughout the world by their trademarks. When another person or company uses the same or very similar identifying characteristics to market or sell their product, this is called trademark infringement, a violation covered by trademark infringement law.
Descriptive devices created to identify products and set them apart from similar ones are protected by trademark infringement law. Once a trademark is registered, no one else can legally use it. Sometimes infringement is overt, other times it is vague, and in some cases, it is claimed to have been inadvertently and innocently used without intended malice. Trademark law varies from country to country; although there are several international treaties and registration systems, there is no way to register a trademark that will be automatically accepted in every country.
In the US, the courts have created four qualifications a company or individual must attain in order to qualify for and receive a trademark. The first is an arbitrary or fancy symbol or mark that has no relation to the actual product but is distinctive and directly related to the product itself. An example is a picture of a trio of elves often associated with a popular rice cereal.
The second qualification is called suggestive. This represents a product line without directly defining the product or service. A good example of this is a popular online retail book and product company named after a well-known South American river.
The third category is descriptive; the product or service is clearly stated with no room for misinterpretation. An appropriate example of this would be a store called Turnipland that only sells turnips. The fourth category, generic, is not protectable. This would include a universally known image like an egg; an egg cannot be considered a protectable trademark.
When a trademark is considered to be infringed or breached, the alleged violation is presented to a trademark infringement attorney for consideration. If the attorney determines the trademark infringement law has likely been broken, the case is placed under review. Eight factors, predetermined by the courts, determine if actual trademark infringement has taken place.
These eight factors include the extension of product lines, the power of the mark or symbol, the goal of the defendant, how closely related the products are, the level of discretion used by the common consumer, the parallels between the two products and marks or symbols, the common threads of the marketing and promotion, and the proof of genuine product or service confusion. If any or all of these factors are questionable, the case would be valid and the trademark infringement law would be applied. Resolution may be reached between the parties outside the court system, or the case may proceed to the courtroom for deliberation.
