December 01, 2011

Protecting Trade Identity

X.M. Frascogna, Jr., Shawnassey B. Howell, and H. Lee Hetherington

From Entertainment Law for the General Practitioner

Among the tips that follow:

  • Find out how trademarks protect businesses and consumers.
  • Learn how much a trademark can be worth.

Unlike copyright, which is exclusively a matter of federal law, registered and unregistered trademarks and trade dress have long been protected on both the federal and state levels by statutory and common law. The essence of harm sought to be prevented by the law of trademarks and unfair competition relates to the prevention of consumer confusion resulting in displaced sales of goods and services. In the classic trademark infringement scenario, a seller of goods and/or services (B) adopts and uses a name, logo, slogan, or even a product packaging scheme or configuration of goods that was first used by a competitor (A). Because of the confusingly similar appearance, sound, or meaning of the two marks, packaging scheme, or product configuration, an unwary consumer erroneously buys B’s product thinking it is A’s. This is known as “passing off.”

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