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(IP) TRADEMARK TUESDAY – Intro To Trademark Law

It’s another installation of Legal Lecture Amie.  Today – Trademarks!

And, as always, this is to be taken as entertainment and not as any kind of legal advice.

A lot of us on here are writers or business people trying to “build our brand.”  Well, what the hell does that mean?

It means making sure people associate your name with what you do.  Tiffany does jewelry, Victoria does underwear, and Louis does purses.  Beyond that though, once people associate your name with your product (i.e. Amie does law and speculative fiction) you want them to associate your name with good product.

What do Tiffany, Victoria and Louis all have in common?

Cha-ching!  They’re pricey, but they can be because everybody knows they’re good quality.  When you pay for a name brand, you’re not paying for the delight of saying, “Look how expensive my bag is.”  Oh wait… Okay, nowadays you are, but that’s not how branding started.

Branding started so customers could buy something and know what kind of quality they were getting because they’d bought from that company before or their friends told them about that company.  Trademark law didn’t start so companies could market themselves, it started to protect consumers.  Originally, it was all about making sure the customer was getting what they thought they were by being able to identify the source of the products.

The big question in trademark law to determine if someone was infringing another’s trademark (meaning use you as the trademark holder could sue over) was, Is there customer confusion?

That touchstone is still used today, but trademark law has evolved into being more about protecting the company and its image than about protecting the consumer from being duped.  Don’t get me wrong, protection of the consumer is still in there, but… let’s just say that’s not what anybody outside of lawyers in a courtroom use it for.

Trademark and branding is almost all about marketing and protecting the company that holds it now.

Tell me, when I say trademark and brand, do you think law or do you think marketing?

So what is a trademark?  A trademark is a distinctive design, picture or words, or combination on goods (they are used for services to, those are technically called service marks but they’re pretty much the same thing) used in commerce.  Basically, you have to have some sort of logo or look associated with your company, and you have to use it to make money.

You don’t have to register it, though there are benefits if you do, such as telling others that’s your trademark so don’t use it.  It’s a trademark if it’s in use.  It may not hold up in court against others trying to use it though.

If it’s not your company, like if you have a website dedicated to talking about a Thing and your website is, you probably can’t register that or fight off others trying to use it, because that trademark is taken by Thing already.  In fact, they may tell you to stop using it because customers think you are associated with Thing.

If it’s not very distinctive, like it’s a Word and people use that Word every day, it’ll be hard to get that registered or to sue someone for infringement.  (I’ll get into distinctiveness in a future post.)  A good example of a trademark that is hard to get but you can if you’ve built up your brand is Tiffany Blue.  They have that shade trademarked.  Most of the time, you can’t get a color trademarked because then you’re precluding others in your field from using that color, and there’s only so many colors in the rainbow.  However, if you have used that color for years and everyone knows that color means you (i.e. Tiffany Blue) then yep, you’ve got yourself a trademark.

If you have a website and are talking about things, like say on your blog, but it’s not “used in commerce,” then it’s not protectable as a trademark.  (What counts as use in commerce gets complicated, because we’re lawyers and complicated is just how we roll.  I’ll get into that in a future post.)

And even if you do get a trademark, others can still use it sometimes, like if they are comparing products to yours, reviewing yours, making a parody of yours, or have a product in an area so different from what you do that nobody could confuse it for yours.

This is all just the barest bit of the beginning of Trademark Law.  I’ll be doing a lot more of these posts in the future to give you readers a grasp of what’s probably the most important area of law to bloggers, Intellectual Property.

IP Law is Trademarks, Copyrights, Patents, and Trade Secrets.  The last two probably aren’t that relevant to writers, but I’m still going to hit on them because they’re fun (yes, they are so!) and me having the Patent Bar should be used for something 🙂

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