Trademarks: The Shopper’s Law

I love trademark law.  I admit it.  I have used the hashtag #trademarknerd more than once.  One reason that I love it is that it is part of everyday life. If you shop, you use and understand trademark law.  And here you thought you were just buying shampoo.

Trademarks are completely based on customer perceptions.  Trademarks can be a word, name, symbol, or device, or any combination of those – whatever can be used to identify and distinguish the mark owner’s goods or services, including a unique product or service, from those manufactured or sold by others and to indicate the source of the goods or services, even if that source is unknown.

OK, in English, it is something that you can use to recognize the thing that you bought before so you can buy it again or tell someone else to buy it. Is it a word? ? Sure, Pantene, Samsung, Pringles are all examples. How about a symbol?  Ever seen these before:








Combinations?  Sure, you may have seen the Coca-Cola script a time or two.  Even cooler, it can be something more abstract:  the Coca-Cola bottle, that bright green Pert Plus bottle, and more.  It could even be a slogan, color, smell, or sound.  It’s what a shopper can and does use when scanning the shelves to know that the correct thing is going into the cart.

That means that you do not want to be confused.  If your nephew must have the newest thing for his X-Box, you need all the help you can get.  Trust me, you do not want to bring the wrong thing to the birthday party.  Skylanders are not to be messed with.  That means there better not be four things on the shelf that all sound and look like it or doom will follow.

Trademark law to the rescue!  Marks are not allowed to be confusing.  The fancy way of saying that is that it is not allowed for a third party to “use in commerce any reproduction, counterfeit, copy, or colorable imitation of a registered mark in connection with the sale, offering for sale, distribution, or advertising of any goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive.”

Again, in English, if the use of a mark (again, word, symbol, smell, whatever) is likely to confuse a customer such that the customer can’t figure which thing to buy, that’s bad.

As a business, that means if your customers are likely to be confused (or worse actually confused) because a competitor is using a confusingly similar mark, then you may be able to stop their use (insert all the wiggle words we lawyers like to use here that all boil down to “it depends on the facts”).  It also means, if you are coming up with a new mark, it’s a good idea to not see how close you can get to your competitor’s marks.  If you are trying to confuse the customer, you are likely infringing and can be liable for damages.  Best advice I can give is:  Just don’t do it.




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