What is a Trademark and Do I Need a Trademark Attorney?
A trademark is a word, name, symbol or device that is used in trade with goods to indicate the source of the goods and to distinguish them from the goods of others. Here are a couple of examples: the Nike “swoosh” and the MGM lion. Without ever seeing the word “Nike” or the letters “MGM,” we have come to identify these marks with these particular sources of good.
Trade dress is very similar in that it is the physical embodiment of a trademark. For example, think of the Coca-Cola bottle. Think you could recognize that unique bottle shape without ”Coke” written on it? I bet you could, and because of this, the Supreme Court has used it as a good example of trade dress.
Having a common law or federally registered trademark gives its owner the right to prevent others from using a confusingly similar mark. The hallmark test for whether trademark infringement has occurred (and can be proven at trial) is whether there is a reasonable likelihood of consumer confusion as to the plaintiff having been the source of the defendant’s goods or services based on the similarity between the plaintiff’s mark and the mark used by the defendant. Owning a trademark does not to prevent others from making or selling the same goods or services under a distinctly different mark.
If you believe someone has improperly used your trademark, or if you have been sued for using a mark that is confusingly similar to another company’s trademark, you need a lawyer with a specialty in litigating trademark disputes. This is not an area of law that should be handled by a general practitioner or by a novice. Winning at trial or negotiating a favorable settlement in the trademark arena requires knowledge that comes from having litigated many such cases in federal court, and having handled cancellation proceedings before the U.S. Patent and Trademark Office, for many years.
Jonathan Pink is a business lawyer with a specialty in copyright, patent and trademark litigation. His clients include many of the biggest names in the automotive and motorcycle aftermarket parts industries, and one of world’s largest media companies. He has extensive experience in a wide range of intellectual property and commercial disputes including breach of contract, fraud, and the misappropriation of trade secrets. He can be reached at 949.223.7173, or at firstname.lastname@example.org, and his full profile can be viewed at www.bryancave.com.
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