We have covered a fair amount of ground here on Legal Ramifications over the past few months. We have talked about defamation (libel and slander) and discussed a general overview of intellectual property. We have gone into some great depth about the law of copyright, probably the IP basket that concerns most bloggers.
Today we will start our discussion of the basics of trademark law. Unlike patent and copyright law, trademark law did not orginally grow up as a federal right under the US consititution, but as a common law right of property protected by the courts of the United States. Today, there is a lot of federal and state law covering trademarks in the US, but the fact is that someone can still develop trademark rights without having to register the trademark with the United States Patent and Trademark Office.
The situation is much different outside the United States and in most countries of the world the owner of a trademark will have to register the claim to trademark with the national patent and trademark office. This points out the fundamental fact that trademarks are territorial in nature, that is, the rights to a trademark at common law extend only to the owners trading area. In nations that have national registration systems, the registation will extend to the entire country. Just because you have trademark rights in one country though, does not mean you have any rights in another country.
A trademark is defined as any word, symbol or logo that the public has come to associate with a seller and his or her products or services. The public is included in this definition because, unlike copyright law which just concerns itself with the rights of a private party, the law of trademarks developed in large part to protect the consumer from the confusion that develops when another party starts using a similar trademark to one that the public has associated with another party. Think of what would happen if another company began selling Coke in a red can and you get the picture. Although Coca-Cola would be damaged – millions of people might buy something that they were not bargaining for.
Next time on Legal Ramifications we will discuss how trademark rights are developed and how to protect you trademarks.