Trademark Law

Trademark laws are designed to fulfill the public policy objective of consumer protection, by preventing the public from being misled as to the quality of a product or service. By identifying the commercial foundation of services and products, trademarks facilitate identification of products and services which meet the expectations of consumers as to quality and other characteristics. Trademark law may also serve as an incentive for manufacturers, providers or suppliers to constantly provide quality products or services in order to maintain their business reputation. A trademark is a word, symbol, or phrase, used to identify a particular manufacturer or seller's products and distinguish them from the products of another. Trademarks are governed by both state and federal law. Originally, state common law provided the main source of protection for trademarks. In order to serve as a trademark, a mark must be distinctive that is, it must be capable of identifying the source of a particular good.

Assuming that a trademark qualifies for protection, rights to a trademark can be acquired in one of two ways: (1) by being the first to use the mark in commerce; or (2) by being the first to register the mark with the U.S. Patent and Trademark Office Although registration with the PTO is not required for a trademark to be protected, registration does confer a number of benefits to the registering party. The rights to a trademark can be lost through abandonment, improper licensing or assignment, or generosity. If a party owns the rights to a particular trademark, that party can sue subsequent parties for trademark infringement In addition to bringing an action for infringement, owners of trademarks can also bring an action for trademark dilution under either federal or state law.

Although likelihood of mystification and dilution are the two main trademark-related causes of action, there exist a number of additional state-law causes of action under state unfair competition law: passing off, contributory passing off, reverse passing off, and misappropriation. Defendants in a trademark infringement or intensity claim can assert basically two types of affirmative defense: fair use or parody. Successful plaintiffs are entitled to a wide assortment of remedies under federal law. Such plaintiffs are routinely awarded injunctions against further infringing.