法律英语：69 Trademarks

by Michael W. Flynn
 
First, a disclaimer: Although I am an attorney, the legal information in this podcast is not intended to be a substitute for seeking personalized legal advice from an attorney licensed¹ to practice in your jurisdiction². Further, I do not intend to create an attorney-client relationship with any listener.   
 
Today’s topic is how to search trademarks⁵. Jennifer wrote:
 
I have what I think is a fabulous⁶ idea for a clothing line. I want to make sure there isn’t already a trademark⁴ on my product name so I can move forward.
 
How do I search that out?
 
Searching for currently trademarked names in the United States is easy. But, determining whether a proposed trademark might infringe⁷ on an existing one is more complicated.
 
First, it is necessary to understand exactly what a trademark is. A trademark is a word, phrase, symbol or design, or a combination of words, phrases, symbols or designs, that identifies and distinguishes the source of the goods of one party from those of others. A service mark is the same as a trademark, except that it identifies and distinguishes the source of a service rather than a product. A common example of a trademark is Coca-Cola. The trademark consists of the words “Coca-Cola,” along with the cursive writing and red and white colors.
 
Trademarks are valuable because they readily tell a consumer where a product comes from. If you see the Coca-Cola trademark on a beverage⁸, you know where the beverage came from. If you like the source, Coca-Cola, then you are likely to want to buy the beverage because you trust where it came from, and have some good will towards the company. By contrast, if you are a Pepsi-person, and see a new drink with the Coca-Cola trademark, you might avoid the product because you do not like Coca-Cola. The main function of the trademark is to give consumers the ability to determine the source of the product.
 
So, if you are looking to start a new business, then you might want to start with a catchy⁹ name and trademark so that your consumers will readily identify your product. The first place to search your proposed trademark is the United States Patent and Trademark Office, also known as the PTO. The PTO website maintains an easily searchable database of all trademarks registered in the U.S., dead or active. In order to find out whether your idea is already trademarked, simply type in the name. The database will return all close matches. For example, if your idea was to create a clothing line called “Cool Clothes,” you would find that there is a dead trademark for that name. There are some active trademarks such as “Pumpkin Hip³ Clothes for Cool Babes,” a clothing line for babies based in San Francisco, and “With-It Kidz Cool Kids Clothes” based in Conoga Park, California.
 
However, simply because a trademark is dead does not mean you can use it immediately. A dead trademark registration¹⁰ means that the registrant has not filed the necessary documents and the registration has lapsed¹¹. It does not necessarily mean that the trademark owner is no longer using the mark — it's simply not registered. It is possible that there is a company out there selling clothing with a “Cool Clothes” trademark, and that trademark is entitled to protection despite the failure of the trademark owner to properly register it. A trademark owner only needs to use his trademark on his product in commerce in order to establish trademark protection. Registration gives a presumption¹² of trademark protection, but it is not necessary. This is where a generalized Google search might help to find the trademark that is not necessarily registered with the PTO.
 
However, even if your proposed mark is not registered, and nobody is using your exact mark in commerce, you still might not be able to use the proposed mark if using it would likely cause consumer confusion. Recall that the whole purpose of a trademark is to give consumers the ability to quickly determine the source of a product, so a mark that would confuse consumers as to source goes against this purpose. For example you could not start a new soda¹³ company called Caco-Cola, and use cursive writing and a red and white font. A consumer looking at your Caco-Cola mark would likely be confused as to where the product came from. It is too similar in appearance, and is attached to a product that is too similar to the original trademark holder¹⁴’s product.
 
There are many other factors that would go into the full analysis of whether a consumer would likely be confused, and I do not have time to discuss them fully¹⁵ today.
 
But, to answer Jennifer’s question, the best way to search for your proposed trademark is by a general Google search and the PTO’s database. If any similar marks appear trademarked, and if that trademark is being used to sell similar products (i.e. clothing), it is probably better just to avoid the idea. If you tried using a similar mark, and the current trademark holder found out, that holder might start sending nasty cease-and-desist letters and eventually sue. If you had to change your trademark after your launched your business, then you will have lost all the goodwill¹⁶ associated with your trademark and will have to start again at square one. Good luck!
 
Thank you for listening to Legal Lad’s Quick and Dirty Tips for a More Lawful¹⁷ Life. Be sure to check out all the excellent Quick and Dirty Tips podcasts at QuickAndDirtyTips.com.

You can send questions and comments to...........or call them in to the voicemail line at 206-202-4LAW. Please note that doing so will not create an attorney-client relationship and will be used for the purposes of this podcast only.
 
Legal Lad's theme music is "No Good Layabout" by Kevin MacLeod.
 

1 licensed   

adj.得到许可的v.许可，颁发执照(license的过去式和过去分词)

参考例句：

• The new drug has not yet been licensed in the US. 这种新药尚未在美国获得许可。
• Is that gun licensed? 那支枪有持枪执照吗？

2 jurisdiction   

n.司法权，审判权，管辖权，控制权

参考例句：

• It doesn't lie within my jurisdiction to set you free.我无权将你释放。
• Changzhou is under the jurisdiction of Jiangsu Province.常州隶属江苏省。

3 hip   

n.臀部，髋；屋脊

参考例句：

• The thigh bone is connected to the hip bone.股骨连着髋骨。
• The new coats blouse gracefully above the hip line.新外套在臀围线上优美地打着褶皱。

4 trademark   

n.商标；特征；vt.注册的…商标

参考例句：

• The trademark is registered on the book of the Patent Office.该商标已在专利局登记注册。
• The trademark of the pen was changed.这钢笔的商标改了。

5 trademarks   

n.（注册）商标( trademark的名词复数 )；（人的行为或衣着的）特征，标记

参考例句：

• Motrin and Nuprin are trademarks of brands of ibuprofen tablets. Nuprin和Motrin均是布洛芬的商标。 来自《简明英汉词典》
• Many goods in China have the trademarks of a panda. 中国的许多商品都带有熊猫的商标。 来自《简明英汉词典》

6 fabulous   

adj.极好的；极为巨大的；寓言中的，传说中的

参考例句：

• We had a fabulous time at the party.我们在晚会上玩得很痛快。
• This is a fabulous sum of money.这是一笔巨款。

7 infringe   

v.违反，触犯，侵害

参考例句：

• The jury ruled that he had infringed no rules.陪审团裁决他没有违反任何规定。
• He occasionally infringe the law by parking near a junction.他因偶尔将车停放在交叉口附近而违反规定。

8 beverage   

n.(水，酒等之外的)饮料

参考例句：

• The beverage is often colored with caramel.这种饮料常用焦糖染色。
• Beer is a beverage of the remotest time.啤酒是一种最古老的饮料。

9 catchy   

adj.易记住的，诡诈的，易使人上当的

参考例句：

• We need a new slogan.The old one's not catchy enough.我们需要新的口号，旧的不够吸引人。
• The chorus is very catchy to say the least.副歌部分很容易上口。

10 registration   

n.登记，注册，挂号

参考例句：

• Marriage without registration is not recognized by law.法律不承认未登记的婚姻。
• What's your registration number?你挂的是几号？

11 lapsed   

adj.流失的，堕落的v.退步( lapse的过去式和过去分词 )；陷入；倒退；丧失

参考例句：

• He had lapsed into unconsciousness. 他陷入了昏迷状态。
• He soon lapsed into his previous bad habits. 他很快陷入以前的恶习中去。 来自《简明英汉词典》

12 presumption   

n.推测，可能性，冒昧，放肆，[法律]推定

参考例句：

• Please pardon my presumption in writing to you.请原谅我很冒昧地写信给你。
• I don't think that's a false presumption.我认为那并不是错误的推测。

13 soda   

n.苏打水；汽水

参考例句：

• She doesn't enjoy drinking chocolate soda.她不喜欢喝巧克力汽水。
• I will freshen your drink with more soda and ice cubes.我给你的饮料重加一些苏打水和冰块。

14 holder   

n.持有者，占有者；(台，架等)支持物

参考例句：

• The holder of the office of chairman is reponsible for arranging meetings.担任主席职位的人负责安排会议。
• That runner is the holder of the world record for the hundred-yard dash.那位运动员是一百码赛跑世界纪录的保持者。

15 fully   

adv.完全地，全部地，彻底地；充分地

参考例句：

• The doctor asked me to breathe in,then to breathe out fully.医生让我先吸气，然后全部呼出。
• They soon became fully integrated into the local community.他们很快就完全融入了当地人的圈子。

16 goodwill   

n.善意，亲善，信誉，声誉

参考例句：

• His heart is full of goodwill to all men.他心里对所有人都充满着爱心。
• We paid ￡10,000 for the shop,and ￡2000 for its goodwill.我们用一万英镑买下了这家商店，两千英镑买下了它的信誉。

17 lawful   

adj.法律许可的，守法的，合法的

参考例句：

• It is not lawful to park in front of a hydrant.在消火栓前停车是不合法的。
• We don't recognised him to be the lawful heir.我们不承认他为合法继承人。