A court ruling regarding copyright or trademark infringement. In this defense a court may rule that use of a trademark or copyrighted material was within legal boundaries in consideration of four factors. These factors are as follows: the purpose and character of the disputed use; the nature of the copyrighted work; the importance of the portion used in relation to the work as a whole; and the effect of the use on the market for or value of the copyrighted work.
Trademarks, service marks, and trade dresses are classified along a range or gamut where the “central tones” in the range are, from weak to strong: generic, descriptive, suggestive, “arbitrary, fanciful or unique”. The “distinctiveness” of a mark or trade dress increases as it moves toward the “suggestive or arbitrary” end of the spectrum. A distinctive mark requires a lesser or no showing of “secondary meaning” for protection. Comprise terms that have been invented for the sole purpose of functioning as a trademark or service mark. Such marks comprise words that are either unknown in the language (e.g., PEPSI, KODAK, EXXON) or are completely out of common usage (e.g., FLIVVER).
Federal trademark result from filing trademark applications under the Lanham Act. There are two registers — the Principal Register and the Supplemental Register. The types of marks available include trademarks, service marks, certification marks, and collective marks.Filing is constructive use and notice of the applicant’s claim to the mark. Before a trademark can be obtained, the applicant must provide proof of use in interstate or foreign commerce. However, by filing on an intent-to-use basis, proof of use can be delayed until after examination and publication. This allows the applicant to see what rights he or she will be granted and to find out whether any third parties will oppose before bringing out the trademarked product or service. A registration preempts the entire U.S. and is retroactive to the filing date for priority purposes. Registrations have ten-year terms and are renewable.
When an application is submitted via e-TEAS, the Office immediately issues a confirmation of filing via e-mail that includes the serial number and filing date, and a summary of all the data provided by applicant in the application. This serves as evidence of filing. Applicants who file paper applications receive printed filing receipts that list the application serial number and filing date, the mark, the applicant’s name, the goods and/or services, the filing bases, if available; the international class(es), and the address to be used for correspondence.
Also known as a final Office action, which makes “final” any outstanding refusals or requirements. A proper response to a final Office action is a) compliance with the requirements or b) appeal to the Trademark Trial and Appeal Board.