Protecting your image is a main priority for the business owner. But what litigation exists to protect you? At KCampbell-Law, PLLC, Attorney Kerrie Campbell handles high-profile libel, defamation, product disparagement, commercial speech, Lanham Act and First Amendment cases, in both trial and appellate courts.
But what is the Lanham Act and what does it mean for your organization?
The Lanham Act and Marks
According to The Legal Information Institute, the Lanham Act “was enacted by Congress in 1946. The Act provides for a national system of trademark registration and protects the owner of a federally registered mark against the use of similar marks if such use is likely to result in consumer confusion, or if the dilution of a famous mark is likely to occur.”
A “mark” is the condensed term for trademarks, service marks, collective marks, and certification marks. A mark may be a word, name, symbol, device, or any combination.
A break-down of the Act
The Lanham Act, also known as the Trademark Act of 1946, focuses on two aspects: trademark eligibility and trademark violation.
- Trademark Eligibility: To meet the requirements of the law and receive protection, the mark must be used in commerce and it must be distinctive. Defined by the Act, “a trademark is defined as a mark used in commerce, or registered with a bona fide intent to use it in commerce.”
Simply, “use in commerce” means that at the time U.S. trademark applications are filed, acceptance is based on use or intention to use in commerce and comes into action when applicants file their proof of such use in The United States Patent and Trademark Office.
The “distinctive” requirement can best be understood in four parts: arbitrary/fanciful, suggestive, descriptive and generic. The following are defined by Zatarain’s, Inc. v. Oak Grove Smoke House, Inc., 698 F.2d 786 (5th Cir. 1983)
- Arbitrary or fanciful terms bear no relationship to the products or services to which they are applied. Arbitrary and fanciful marks are protectable without proof of secondary meaning.
- A suggestive term suggests some particular characteristics of the goods or services and requires the consumer to use imagination to draw conclusions as to what the goods and services are.
- A descriptive term “identifies a characteristic or quality of an article or service,” such as its color, odor, function, dimensions or ingredients.”
- A generic term is “the name of a particular genus or class of which an individual article or service is but a member.” A generic term connotes the “basic nature of articles or services” rather than the more individualized characteristics of a particular product.
- Trademark Violation: According to the United States Patent and Trademark Office, “Trademark infringement is the unauthorized use of a trademark or service mark on or in connection with goods and/or services in a manner that is likely to cause confusion, deception, or mistake about the source of the goods and/or services.”
- The plaintiff has a valid and legally protectable mark;
- The plaintiff owns the mark;
- The defendant’s use of the mark to identify goods or services causes a likelihood of confusion.
Have you been a victim of trademark violations? Contact Reputation Management Attorney Kerrie Campbell Today
Your reputation is everything, and you need to protect it. Although being prepared is the best option for your business, you need a capable business reputation management attorney to protect you from any problems that have or will arise. At KCampbell-Law, PLLC, Attorney Kerrie Campbell has had decades of experience protecting businesses from slander, liable, and defamation. Attorney Campbell will work with the businesses’ leadership to identify any issues and correct them. She will also stand for you in court to make sure the person or institution spreading the disinformation is punished.
If you are a business in need of reputation management and protection, do not delay. Contact KCampbell-Law, PLLC today, and learn your legal options.