Individual Analysis of the Legal concept of Trademarks
For this Assignment reset please prepare an original document of 1250 words. Evaluate the following concepts:
Define trademark (what does the concept mean?)/Applications/Law assignment .docx
Illustrate the legal ramification of a trademark (Is a trademark registered? Are other companies allowed to use another companies trademark? Is this trademark infringement?)
Pick a company (Nike.) and evaluate their trademark. (use a company as an illustration)
Analyse why trademarking a brand is essential. (can a company operated without a trademark?)
Here is a legal understand of the concept https://www.uspto.gov/sites/default/files/documents/BasicFacts.pdf
The paper is intended to Help your understanding and to utilize critical thinking to assess an issue that company’s face with branding issues. The assignment is two-fold: one to evaluate the concept of trademarks, but also, to their legal value and need.
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Individual Analysis of the Legal Concept of Trademarks
Introduction
Business organizations have unique identifications based on their products or services and sources. Trademarks are provided by different jurisdictions across the globe to define the rights of organizations’ products and services. Trademark is defined as any word, symbol, design, name, or any combination thereof, used in identifying and distinguishing the goods of particular manufacture or seller from those of one another and indicating the sources of the goods (Legal Information Institute, n.d). Therefore, producers identify their goods using words, phrases, symbols, and logos. However, under some circumstances, trademark protection extends beyond the defined concepts to include other aspects of products such as shapes, color, sounds, and fragrances. The trademark protection in recent years has also been expanded to incorporate trade dress and anti-dilution protection. This paper provides an analysis of the trademark’s legal ramification, the essential of trademarking a brand and evaluate Nike company trademark.
Discussion and Analysis
The legal ramification of a trademark involves various aspects. The first is the source of law that governs trademarks, which include both the state and federal law. The state common law constituted the original provision of the trademark protection law. In the 1800s, the federal trademark law was enacted by the United States Congress, which continued to expand and now covers the most extensive part of laws pertaining to trademark protection. The Lanham Act enacted in 1946 and emended in 1996 stand to be the federal statute that governs trademark together with the state common law.
Based on the law that governs trademark, various requirements must be attained for a mark to serve as trademark protection. They include a distinctive mark, which involves a trademark’s capability of identifying and distinguishing the source of a particular good or producer from another. The distinctive determination of a mark is grouped into four categories basing on the marked relationship with the underlying products. The groups include arbitrary, suggestive, generic, and descriptive (Legal Information Institute, n.d). The marks that fall under the arbitrary and suggestive are considered to be inherently distinctive with their priority of use determining their exclusive rights. A mark under descriptive becomes protectable if it has gained a secondary meaning in minds of the public consumers, while generic mark becomes protectable over time due to its general class of products (Qinghu, 2005). Another requirement that must be attained is that a mark must be used in commercials. The commercial use requirement is based on the congressional power in regulating interstate commerce through the trademark law. For instance, based on the Lanham Act, a trademark is defined as a mark used in commerce, or at the time of registration, the applicant justifies the intention of using it in commerce at a future date. Therefore, under the state common law and federal law, a product is eligible for a trademark award upon the establishment of commerce use.
Another aspect regarding trademark is how the rights of a trademark are acquired. In the process that a trade qualifies for protection, the trademark rights can be acquired when one uses the mark in commerce as the first or being the first to register the mark with the PTO. However, the descriptive mark can] not acquire rights in a trademark through the two mentioned ways since qualification for protection on the descriptive is attained through secondary meaning by consumers. Therefore, the period that exists between the secondary meaning definition and the initial use in the market means that the product within the descriptive marks does not have entailment to trademark protection (Legal Information Institute, n.d). When the product is sold to the public with an attached mark for their first time, the seller acquires a trademark for the product within the geographical area of selling the product, where the mark reputation has been established, or where the seller is expected to expand. The other way of acquiring trademark rights is through registration with the United States Patent and Trademark Office (PTO), with a bona fide intention of using the mark in commerce at that time or in the future time (WIPO, 1993). The difference between the registration and use of a mark in commerce is hat the registration way enables the party to acquire the right of using the mark nationwide. The benefits of registering a trademark include a party receiving a nationwide use right. The other benefit is that it helps a party in bringing an infringement suit in the federal court, to recover treble damages, and attorneys’ fees. A party can lose trademark rights through improper licensing or through genericity.
Nike company provides an illustration of trademark protection, as the company holds several trademarks based on its name, slogan, and symbol that are registered and cannot thereby be used by another company. The most common Nike trademark is the “Jumpman” logo that originated from a Life magazine photograph in 1984. Jacobus Reintmeester, who took the photo of Michael Jordan that was later used by Nike filled an infringement after Nike using the photo and was awarded $15,000 to allow Nike to use the image for two years. Nike introduced another Jumpman logo in 1987, although the company had to continue paying Reintmeester as the logo had high similarities to the image he took back in 1984 (UpCounsel, 2020).
Trademarking a brand is essential in various ways to the company including making it easier for the customers to find the company products. Trademarks on a brand are considered the most efficient commercial communication tool that companies use to capture the attention of customers and making their products or services stand out (Rubinstein, 2014). Another importance of trademarking a brand is that it helps to indicate the content level of quality of a company’s products and services (Lombard & Geliebter, 2009). It also enables a company to reduce the aggregate costs associated with product or service advertising, promotion, marketing, and sales efforts as customers are attracted and have a trust with the products or services with the company trademark.
Conclusion
Trademark is an important aspect of the organization in the commercial industry considering the stiff competition that exists in the market today. A company trademarking its products and services helps it to protect its original brand and distinguishing its products from those of others, which enables it to hold on its loyal customers despite the competition. The paper provides other essential aspects regarding trademark based on the legal concepts including prerequisites for a product to serve as a trademark, the rights and registration of trademarks, and how a company can lose the trademark rights.
References
Legal Information Institute. (n.d). Trademark. Retrieved from https://www.law.cornell.edu/wex/trademark
Lombard & Geliebter. (2009). Reasons Why Trademarks Are Important to Your Business. Retrieved from http://www.lgtrademark.com/wp-content/themes/nextclient/media/Reasons_Why_Trademarks_Are_Important_to_Your_Business.pdf
Qinghu, A. (2005). Well-Known Marks & China’s System of Well-Known Mark Protection. Official Journal of the International Trademark Association, Vol. 95, No. 3, pp. 705-772. https://www.inta.org/TMR/Documents/Volume%2095/vol95_no3_a5.pdf
Rubinstein, A. (2014). Reasons Why Trademarks Are Important to Your Business. Entrepreneur. Retrieved from https://www.entrepreneur.com/article/235887#:~:text=Trademarks%2Fbrands%20are%20an%20efficient,likely%20to%20look%20for%20alternatives.
UpCounsel. (2020). Nike Trademarks: Everything You Need to Know. Retrieved from https://www.upcounsel.com/nike-trademarks#:~:text=Nike%20holds%20several%20trademarks%2C%20including,used%20in%20another%20company’s%20marketing.
WIPO. (1993). An Introduction to Trademark Law and Practices: The Basic Concepts. Retrieved from https://www.wipo.int/edocs/pubdocs/en/wipo_pub_653.pdf
