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Trademark Attorney in Orlando Helps Clients with Trademark Matters

What can I Trademark?

A mark must sufficiently differentiate itself from an existing mark to prevent confusion in the mind of a reasonable consumer. In this respect, it is important to consider factors such as the similarity of your mark to an existing name, geographical proximity, closeness of your goods and services, size, visual design elements, the type of industry involved and so forth. Marks must also be sufficiently distinctive to qualify for protection. As provided Orlando Trademark Lawyer Helps Clients Across Central Floridathe Restatement of Unfair Competition, the mark must create a "distinct commercial impression" and must be used "in commerce" (sold, transported or the equivalent via usage of documents), in a bona-fide manner and ordinary course of trade. Note however that an intent-to-use application will permit you to apply for trademark as long as you have a bona fide intention to use the mark in commerce 15 USC 1051(b). In determining whether a mark can withstand USPTO scrutiny it is important to ascertain certain qualities, aspects and characteristics enumerated below. These considerations are by no means exhaustive and cannot replace the advice of an experienced trademark attorney in Orlando. Among other matters, they include the following:

  1. Is the symbol being applied for trademark deceptive or "misdescriptive"? Is it disparaging or derogatory? Does it "falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols." 15 U.S.C. §1052(a). Is the mark so offensive, "immoral" or "scandalous" that it would shock or greatly offend one's sense of decency? Id. Is your mark near to or identical to a government symbol?
  2. Is your mark descriptive, and if yes, has it acquired a secondary meaning? A mark is descriptive when it demonstrates the qualities and characteristics of a product instead of the source of the product or where it comes from. A mark acquires a secondary meaning when over time it becomes known or associated in the public mind as a specific brand and no longer something generically descriptive of a product. A particularly good definition of secondary meaning was provided in Inwood v. Ives Laboratories, 456 U.S. 844 (1982), where the court defined a secondary meaning to be one where "in the minds of the public, the primary significance is to identify the source of the product rather than the product itself." You or your business lawyer should keep in mind that there are various factors that courts consider in deciding whether secondary meaning has been acquired, such as exclusivity, duration of time and etc...
  3. Is the symbol generic without having acquired secondary meaning? Does the mark suggest a category of goods or services instead of a place or thing from which the product itself derives? For example, generic terms such as "ebook," "microchip," "computer," "cat," or "Legal Services" are very likely to be considered generic and therefore not protectable. To allow for such names to be trademarked would cause tremendous disadvantage to competitors.
  4. Is your mark geographically descriptive without having acquired any secondary meaning? For example, imagine use of a mark called Hawaiian to designate a new brand of cheese with no established secondary meaning. Are you likely to associate this product with a cheese that comes from Hawaii?
  5. Another related category is product design trade-dress and functionality. Is your mark referencing some sort of an element considered a necessary part of the trade-dress? Are you trying to trademark a certain attribute that has a functional purpose in making the design more useful?
  6. Are you trying to trademark a specific color that is an inherently distinctive attribute to derive a connection to your particular source of goods or services?
  7. Are you trying to trademark your last name without having acquired any secondary meaning? Example, are you trying to trademark the name Sandler to brand a new kind of hydrogen intake motor to help power spacecraft in the newly emerging industry?

 

Contact Our Orlando Trademark Lawyer

If you are looking for an experienced trademark lawyer in Central Florida to provide you with advice or assistance with the registration of your trademark filing, call us at 407-205-2330 for a free consultation. You may also fill out the online form located on this page and our Orlando trademark attorney will contact you shortly. We would be honored to assist you.

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