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Intellectual Property

This article provides an overview of trademark distinctiveness, including its requirements, duration, and rights. It covers different categories of marks and the significance of secondary meaning. Case examples and policy considerations are also discussed.

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Intellectual Property

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  1. Intellectual Property Boston College Law School March 31, 2008 Trademark - Distinctiveness

  2. Overview • Requirements • (1) Distinctiveness • (2) Use in commerce • Registration not required (although benefits) • Duration • As long as used and distinctive • Rights • Protect against consumer confusion • Protect against dilution (for famous marks)

  3. Generic Denotes general class of products Unprotectible Shredded Wheat, Aspirin, Thermos, Cellophane, Car, Computer Descriptive Describes some characteristic/quality Protectible if secondary meaning Suggestive Suggests some characteristic Automatically Protectible Arbitrary Bears no relation to product Automatically Protectible Categories of Marks Less Protection More Protection

  4. Trademark Significance Costs from Protection Policy Considerations High Secondary Meaning Unprotectible Protectible Low Generic Descriptive Suggestive Arbitrary Distinctiveness

  5. Zatarains v. Oak Grove

  6. Secondary Meaning • Definition: primary significance of the term in the minds of the consuming public is not the product but the producer • Factors • Consumer surveys • Amount and volume of advertising • Volume of sales • Length and manner of use • Direct consumer testimony

  7. Trademark TENDER VITTLES (cat food) ROACH MOTEL (roach trap) CHAP STICK (lip balm) VISION CENTER (optical store) BEER NUTS (snack food) FAB (laundry detergent) BOLD (laundry detergent) STRONGHOLD (nails) CITIBANK (banking services) NUTRASWEET (sweetner) Category Descriptive Suggestive Descriptive Descriptive Descriptive Arbitrary Suggestive Suggestive Suggestive Descriptive Categorizations

  8. Secondary Meaning • Marks Requiring Secondary Meaning • Descriptive Marks • Surnames • Geographical Marks (some) • Trade Dress and Product Design?

  9. Trade Dress & Product Design Trade Dress Product Design

  10. Two Pesos v. Taco Cabana

  11. Two Pesos v. Taco Cabana505 U.S. 763 (1992) • Findings of the District Court • Taco Cabana has an identifiable trade dress • The trade dress is non-functional • The trade dress is inherently distinctive • The trade dress has not acquired secondary meaning

  12. Inherently Distinctive?

  13. Inherently Distinctive?

  14. Potential for Confusion Product Design Trade Dress, Trademarks Harm to Competition Policy Considerations High Low Generic Descriptive Inherently Distinctive Distinctiveness

  15. Example - Review

  16. Administrative Details • Next Assignment • Read through VI.C.2 – Priority

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