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Trademark Laws

What is a trademark?

A trademark is a unique sign, logo, name, design, and/or phrase used by individuals, businesses or legal entities to distinguish and identify their products or services from other similar offerings in a specific market or customer base. Trademarks help in relating and differentiating products from one another to the consumer or end user. The owner of the trademark can register their trademark under the trademark laws in order to prevent others from using and benefitting from it. A person can be sued for infringing upon a trade mark.

Listed below are a few questions answered by the Experts on issues related to trademark laws.

I am involved in a business to make weighted hoops for exercise. On the website it is referred to as “hula hoop” because of which I have received a legal notice. Am I violating trademark laws?

“Hula Hoop” is a registered trademark which has become a recognized service mark as well. This implies the majority of the U.S. as well as the rest of the world would probably know what a hula hoop is. Using this term in your business to sell weighted hoops and other related merchandise is an infringement of the trademark and copyright laws. Though your product may be different from the original hula hoop, it is still a related product category. One of the possibilities where you could use the word “hula hoop” would be if you were selling a completely unrelated product. Example: wine or bottled water. Since you have received a legal notice it would be wise to eliminate the term hula hoop from your websites and products to avoid litigation. If you fail to do so, you could be sued and required to pay fines as well as a royalty for any sales made using their name.

I have been selling a product since 2010, used for cleaning dental equipment. Another brand similarly named catering to dental hygiene was trademarked in August 2011. Is this trademark infringement?

The two products in question are meant for different purposes and thereby catering to different consumer base. It is unlikely that confusion would be caused among the consumers and the cleaner will not be available in a retail market. Another important fact is you have been using the name in business prior to the other person who has trademarked the similar name. This gives you an advantage to continue using the name especially if the other party has discontinued the use of the trademark in business. You are entitled to common law trademark rights and could get the name registered but it may be complicated. However since the products are distinctive without consumer overlapping it could be permitted.

I am attempting to register for trademark protection in Europe for a name which is currently a registered trademark in Australia. Will the party in Australia be notified? What can I do?

If the trademark protection you are seeking is filed using the international trademark under Madrid System there is a possibility for the owner of the similar mark in Australia to be notified of this. If the Australian owner does not hold an international trademark which provides protective rights overseas including Europe, you can proceed with registering your mark only in Europe.

Can I own and register a trademark which is listed inactive and the company it belongs to could have possibly shut down?

Even if the company appears to have not produced any goods for a considerable period, the mark could still be used in trade and advertising or the federal registration mark could have expired on the trademark while it is still subject to the state laws. You need to ascertain the actual status of the company by doing a complete and comprehensive research to understand the past operations, current standing, future plans, and so on. Documenting the research will serve as proof in case the company does surface and decide to make a claim. You could even consider hiring the services of a trademark attorney to conduct research on your behalf. This will prove due diligence on your part and strengthen your case in the event of any litigation.

Can I register a trademark online? Where could I do so?

The name and logo can be trademarked online for a fee of around $300 per category of trademark you submit under. The website where you can do so is www.uspto.gov. Ideally you should hire a trademark attorney to do the necessary research for the chosen name to rule out any infringement or overlapping. Since the fee is non refundable, the attorney will also be useful in filling the application correctly and thoroughly to avoid any errors.

Trademarks can be essential for your business and its success. A symbol, logo, tagline or name can sometimes immortalize a product or could even become a part of our daily vocabulary. Trademark laws vary from state to state and are dependent on factors such as products and customer base. Consulting Expert’s can help you gain useful insights and information to obtain maximum protection for your trademark or understand the process of making a claim in case of any infringement.

Ask a Lawyer

Tina
Tina, Lawyer
Category: General
Satisfied Customers: 8603
Experience:  JD, BBA Over 25 years legal and business experience.
4460311
Type Your Legal Question Here...
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8 Lawyers are Online Now

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