History UsefulNotes / Trademark

24th Nov '17 10:36:25 AM nombretomado
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Then there is the concept of FairUse, (which while normally relevant to copyright, also applies to use of other people's trademarks), where someone can use someone else's trademark whether its owner likes it or not. For example, let's say I run a blog and I post openly that I happen to hate Coca-Cola because I think it tastes bad, and I happen to like Dr. Pepper. They can't successfully sue me because it's a legitimate commentary. (To be fair, I will note that my brother, on the other hand, likes Coke and hates Dr. Pepper.) This use of their trademarks is fair use because I am giving a comparison of products. Besides that, it's pure opinion; there is no objective way to prove if a soft drink tastes good or bad. Now, if I sold a soft drink called "Swill", and I ran a survey, I could legally say that "86% of customers preferred Swill over Mountain. Dew" (as long as it was true). (This was the entire premise of the UsefulNotes/PepsiChallenge, where Pepsi showed that people preferred it over Coke, and started the Cola Wars of the 1980s.)

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Then there is the concept of FairUse, UsefulNotes/FairUse, (which while normally relevant to copyright, also applies to use of other people's trademarks), where someone can use someone else's trademark whether its owner likes it or not. For example, let's say I run a blog and I post openly that I happen to hate Coca-Cola because I think it tastes bad, and I happen to like Dr. Pepper. They can't successfully sue me because it's a legitimate commentary. (To be fair, I will note that my brother, on the other hand, likes Coke and hates Dr. Pepper.) This use of their trademarks is fair use because I am giving a comparison of products. Besides that, it's pure opinion; there is no objective way to prove if a soft drink tastes good or bad. Now, if I sold a soft drink called "Swill", and I ran a survey, I could legally say that "86% of customers preferred Swill over Mountain. Dew" (as long as it was true). (This was the entire premise of the UsefulNotes/PepsiChallenge, where Pepsi showed that people preferred it over Coke, and started the Cola Wars of the 1980s.)
16th Nov '17 4:53:21 AM Tdarcos
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If one applies for a trademark/servicemark registration and it is granted, it gives the mark's owner a considerable amount of protection. They can stop the importation into the country of counterfeit goods carrying that mark, stop others using the same or deceptively similar mark, and, just like with bootleg copyrighted material, they can get a court to order the "impounding" (Federal marshals and/or FBI or Treasury Department officials can seize) of knockoffs, and if proven to be knockoffs, destruction.
12th Jul '17 3:38:32 PM Tdarcos
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A trademark or servicemark is used to identify goods or services that you produce; you do not necessarily have to be a commercial organization or even making a profit to obtain one to identify your products and services. For example, a religious organization might have a trademark on the name of its particular religious text ("The Most High Sun Prayer Guide") and a service mark for the name of its particular religion. ("[=PraySun=]"). This is exactly the situation with the Church of Scientology, where "Scientology," the name of their religion, is a registered servicemark, while their primary reference manual, "Dianetics" is a registered trademark. The Salvation Army has a service mark registration on its red shield, and the Jehovah's Witnesses have trademarks in their publications "Awake!" and "The Watchtower".

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A trademark or servicemark is used to identify goods or services that you produce; you do not necessarily have to be a commercial organization or even making a profit to obtain one to identify your products and services. For example, a religious organization might have a trademark on the name of its particular religious text ("The Most High Sun Prayer Guide") and a service mark for the name of its particular religion. ("[=PraySun=]"). This is exactly the situation with the Church of Scientology, where "Scientology," the name of their religion, is a registered servicemark, while their primary reference manual, "Dianetics" is a registered trademark. The Salvation Army has a service mark registration on its red shield, and the Jehovah's Witnesses have trademarks in their publications "Awake!" and "The Watchtower".
Watchtower". The United States Department of Defense has a service mark in "American Forces Network," its broadcasting/satellite TV arm for members of the military even though its stations do not run commercials.
17th Jan '17 6:43:27 PM Tdarcos
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Also, if you register a domain name and someone else claims they are entitled to that name, the domain dispute process looks to see if either party has a trademark or service mark registered at the national level of some country, so state-level registrations don't count. Due to the much faster processes involved, some companies that don't even operate there are registering marks in the country of Tunisia.



Also, if a trademark does not represent a distinct, specific owner to people who use the product or service it identifies (as opposed to the trademark or service mark being the "generic" term used to describe the product), the trademark can be declared "generic" by a court and then anyone can use it. This is why anyone can call acetysalicitic acid "aspirin" in the United States, it's become the generic term for that product. (Aspirin is still a trademark of Bayer in the United Kingdom, however.) This is why Johnson & Johnson (creators of Band-Aid bandages) and Xerox tried to discourage the public from using their trademarks as generic terms for the type of product[[note]]or the verb form of the product's function, in the case of Xerox[[/note]]--it weakened the respective trademarks.

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Also, if a trademark does not represent a distinct, specific owner to people who use the product or service it identifies (as opposed to the trademark or service mark being the "generic" term used to describe the product), the trademark can be declared "generic" by a court and then anyone can use it. This is why anyone can call acetysalicitic acid "aspirin" in the United States, it's become the generic term for that product. (Aspirin is still a trademark of Bayer in the United Kingdom, however.) This is why Johnson & Johnson (creators of [[StuckOnBandaidBrand Band-Aid bandages) bandages]]) and Xerox tried to discourage the public from using their trademarks as generic terms for the type of product[[note]]or the verb form of the product's function, in the case of Xerox[[/note]]--it weakened the respective trademarks.



But you have to be careful, especially in advertisements. Taco Bell got into a public relations disaster after - without asking him first - they ran ads suggesting rap music performer 50 Cent (Curtis Jackson) change his name to 79 Cent, 89 Cent, or 99 Cent, and order one of their menu items at that price, and they'd donate $10,000 to the charity of his choice. He sued them, and it's probably likely the settlement Taco Bell agreed to was considerably more than $10,000, and probably went to his pockets directly.

Now, however, the movie "Film/InsideMan" has a kid playing a violent video game, explaining how he likes it. 'It's like my man 50 Cent says, "Get rich or die tryin'"' This use is merely conversational, does not imply Mr. Jackson approved of the use of his trademark - yes, he has actually registered "50 Cent" as a trademark - and thus the use in the movie is legal as fair use even without his permission.



But not always. For a disparagement case to be successful, what's said must be untrue ''and'' people would have to believe the lie. If I pick on Coke again and say in my blog that it tastes like piss because they use swamp water direct from the planet Mars, that's clearly hyperbole because no one could seriously believe it's possible to import anything from another planet. But if someone says something provably wrong that could be believed and it makes that product look bad, there is a good chance the manufacturer can go after the speaker or publisher for disparagement.

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But not always. For a disparagement case to be successful, what's said must be untrue ''and'' people would have to believe the lie. If I pick on Coke again and say in my blog that it tastes like piss because they use swamp water direct from the planet Mars, that's clearly hyperbole because no one could seriously believe it's possible to import anything from another planet. But if someone says something provably wrong that could be believed and it makes that product look bad, there is a good chance the manufacturer can go after the speaker or publisher for disparagement.
disparagement. (This is also why it's legal to give these fictitious examples about Coca-Cola in this article because it's clear that I am identifying them as false and am not intending that anyone believe them.)
10th Jan '17 11:58:41 PM Tdarcos
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Then there's the problem where a trademark or servicemark is so successful that people use the mark interchangeably with the non-branded name. When a mark becomes generic, anyone can use it, and it is no longer capitalized except when used as the first word of a sentence. Note that a mark can be generic in one use and a strong trademark or service mark in another. It's perfectly legal to sell solid fuel under the name "coke" (a type of processed coal) without getting permission from anyone, but unless you're selling "The Real Thing" you'd better not try to sell any beverage under the name "Coke" unless it's authorized by the Coca-Cola Company of UsefulNotes/{{Atlanta}}. The word "peanuts" (not capitalized) refers to nuts that grow underground, but the word "ComicStrip/{{Peanuts}}" (capitalized) refers to a comic strip by Charles Schulz as well as a series of books and TV specials.

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Then there's the problem where a trademark or servicemark is so successful that people use the mark interchangeably with the non-branded name. When a mark becomes generic, anyone can use it, and it is no longer capitalized except when used as the first word of a sentence. Note that a mark can be generic in one use and a strong trademark or service mark in another. It's perfectly legal to sell solid fuel under the name "coke" (a type of processed coal) without getting permission from anyone, but unless you're selling "The Real Thing" you'd better not try to sell any beverage under the name "Coke" unless it's authorized by the Coca-Cola Company of UsefulNotes/{{Atlanta}}. The word "peanuts" (not capitalized) refers to nuts that grow underground, underground [[note]] technically peanuts are legumes - a class of pea - rather than actual nuts [[/note]], but the word "ComicStrip/{{Peanuts}}" (capitalized) refers to a comic strip by Charles Schulz as well as a series of books and TV specials.
10th Jan '17 11:45:26 PM Tdarcos
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But even then, the restriction is only with respect to goods or services using a protected name or symbol; if you're making a movie involving a UN peacekeeping agency, you can put UN uniforms on the actors and use the UN flag or logo on their vehicles, or film a scene where International Red Cross workers are involved because of the First Amendment. As long as you don't try to include the protected symbols or names in the advertising for the movie, it's unlikely a court would prevent you from doing so unless you tried to claim you had approval of the organization. Although if the usage puts them in a bad light, they may threaten litigation. The Metropolitan Washington Airports Authority made noises that they were going to take legal action against Film/DieHard 2 because of its frequent mention of "Dulles Airport," which it operates, but nothing happened, someone probably realized they have no grounds to sue and would simply provide lots more publicity, vis-a-vis the StreisandEffect.

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But even then, the restriction is only with respect to goods or services using a protected name or symbol; if you're making a movie involving a UN peacekeeping agency, you can put UN uniforms on the actors and use the UN flag or logo on their vehicles, or film a scene where International Red Cross workers are involved because of the First Amendment. As long as you don't try to include the protected symbols or names in the advertising for the movie, it's unlikely a court would prevent you from doing so unless you tried to claim you had approval of the organization. Although if the usage puts them in a bad light, they may threaten litigation. (See below about "disparagement.") The Metropolitan Washington Airports Authority made noises that they were going to take legal action against Film/DieHard 2 because of its frequent mention of "Dulles Airport," which it operates, but nothing happened, someone probably realized they have no grounds to sue and would simply provide lots more publicity, vis-a-vis the StreisandEffect.
10th Jan '17 11:40:15 PM Tdarcos
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Then there is the concept of FairUse, (which while normally relevant to copyright, also applies to use of other people's trademarks), where someone can use someone else's trademark whether its owner likes it or not. For example, let's say I run a blog and I post openly that I happen to hate Coca-Cola because I think it tastes bad, and I happen to like Dr. Pepper. They can't successfully sue me because it's a legitimate commentary. (To be fair, I will note that my brother, on the other hand, likes Coke and hates Dr. Pepper.) This use of their trademarks is fair use because I am giving a comparison of products. Now, if I sold a soft drink called "Swill", and I ran a survey, I could legally say that "86% of customers preferred Swill over Mountain. Dew" (as long as it was true). (This was the entire premise of the UsefulNotes/PepsiChallenge, where Pepsi showed that people preferred it over Coke, and started the Cola Wars of the 1980s.)

When a mark becomes generic, anyone can use it, and it is no longer capitalized except when used as the first word of a sentence. Note that a mark can be generic in one use and a strong trademark or service mark in another. It's perfectly legal to sell solid fuel under the name "coke" (a type of processed coal) without getting permission from anyone, but unless you're selling "The Real Thing" you'd better not try to sell any beverage under the name "Coke" unless it's authorized by the Coca-Cola Company of UsefulNotes/{{Atlanta}}. The word "peanuts" (not capitalized) refers to nuts that grow underground, but the word "ComicStrip/{{Peanuts}}" (capitalized) refers to a comic strip by Charles Schulz as well as a series of books and TV specials.

to:

Then there is the concept of FairUse, (which while normally relevant to copyright, also applies to use of other people's trademarks), where someone can use someone else's trademark whether its owner likes it or not. For example, let's say I run a blog and I post openly that I happen to hate Coca-Cola because I think it tastes bad, and I happen to like Dr. Pepper. They can't successfully sue me because it's a legitimate commentary. (To be fair, I will note that my brother, on the other hand, likes Coke and hates Dr. Pepper.) This use of their trademarks is fair use because I am giving a comparison of products. Besides that, it's pure opinion; there is no objective way to prove if a soft drink tastes good or bad. Now, if I sold a soft drink called "Swill", and I ran a survey, I could legally say that "86% of customers preferred Swill over Mountain. Dew" (as long as it was true). (This was the entire premise of the UsefulNotes/PepsiChallenge, where Pepsi showed that people preferred it over Coke, and started the Cola Wars of the 1980s.)

However, there is the issue of "disparagement," which means you claim something about a company, product, or service which makes it look bad. If it's pure opinion, such as my example from above how I dislike the taste of Coke, there's nothing they can do about it. If the statement is true, they also can't do anything (on YouTube you can find the video of a New York City Kentucky Fried Chicken - Taco Bell restaurant at 6th Avenue and 4th Street in Greenwich Village where rats were running rampant.) But, if the statement is factual, ''and'' false, then that is actionable. To pick on the Coca-Cola Company again, let's say I do a blog, where not only do I say their flagship product tastes like piss, I say it's because they use actual sewer water in the product. Then, since that's clearly untrue, then they can sue, demand a retraction, an apology, and other damages.

This was the case when some Amway dealers were spreading false rumors that an executive of Proctor & Gamble ("P&G", as they've been known for over a hundred years, who makes products that compete with some of Amway's offerings) was a practicing satanist who had gone on TV to admit this (which he hadn't) and that P&G's "man in the moon" logo, that they had used for decades was a satanic symbol (it wasn't). The company successfully sued some of these people, but the damage was so bad P&G had to drop their old logo and create a new one. In this case, P&G was able to sue over these false rumors.

But not always. For a disparagement case to be successful, what's said must be untrue ''and'' people would have to believe the lie. If I pick on Coke again and say in my blog that it tastes like piss because they use swamp water direct from the planet Mars, that's clearly hyperbole because no one could seriously believe it's possible to import anything from another planet. But if someone says something provably wrong that could be believed and it makes that product look bad, there is a good chance the manufacturer can go after the speaker or publisher for disparagement.

Then there's the problem where a trademark or servicemark is so successful that people use the mark interchangeably with the non-branded name.
When a mark becomes generic, anyone can use it, and it is no longer capitalized except when used as the first word of a sentence. Note that a mark can be generic in one use and a strong trademark or service mark in another. It's perfectly legal to sell solid fuel under the name "coke" (a type of processed coal) without getting permission from anyone, but unless you're selling "The Real Thing" you'd better not try to sell any beverage under the name "Coke" unless it's authorized by the Coca-Cola Company of UsefulNotes/{{Atlanta}}. The word "peanuts" (not capitalized) refers to nuts that grow underground, but the word "ComicStrip/{{Peanuts}}" (capitalized) refers to a comic strip by Charles Schulz as well as a series of books and TV specials.
10th Jan '17 10:37:10 PM Tdarcos
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You might be asking why [[=TV Tropes=]] has an article about trademarks. Well, so that you can understand what they are; what they aren't; how someone else (other than the mark's owner) is allowed to use them in a story; when they can't (or their lawyer thinks they can't) use it; under what circumstances someone using them as part of a media franchise can get a trademark; and when they can't. This will also let you understand ''why'' sometimes they use an obvious fake name in place of an (even more obvious) brand name.

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You might be asking why [[=TV Tropes=]] [=TV Tropes=] has an article about trademarks.trademarks (and servicemarks). Well, so that you can understand what they are; what they aren't; how someone else (other than the mark's owner) is allowed to use them in a story; when they can't (or their lawyer thinks they can't) use it; under what circumstances someone using them as part of a media franchise can get a trademark; and when they can't. This will also let you understand ''why'' sometimes they use an obvious fake name in place of an (even more obvious) brand name.
10th Jan '17 10:35:54 PM Tdarcos
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You might be asking why [[=TV Tropes=]] has an article about trademarks. Well, so that you can understand what they are; what they aren't; how someone else (other than the mark's owner) is allowed to use them in a story; when they can't (or their lawyer thinks they can't) use it; under what circumstances someone using them as part of a media franchise can get a trademark; and when they can't. This will also let you understand ''why'' sometimes they use an obvious fake name in place of an (even more obvious) brand name.
24th May '16 7:26:15 PM BigBertha
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As a result of treaties between countries, there are marks of international organizations that can't be used without their permission (unless you were using the mark for something before the mark was granted treaty status). The word "Olympic" or the 5 interlocking rings; the UsefulNotes/UnitedNations flag or logo; UsefulNotes/TheRedCross (Johnson & Johnson can still use the Red Cross for cotton in the United States because they were using it more than 100 years ago before the symbol was protected), Red Crescent (some Muslim countries) or Red Crystal. (The Red Crystal got created because the Arab countries wouldn't put up with the use of a red Star of David as the Israeli Red Cross used, so they picked something less offensive.)

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As a result of treaties between countries, there are marks of international organizations that can't be used without their permission (unless you were using the mark for something before the mark was granted treaty status). The word "Olympic" or the 5 interlocking rings; the UsefulNotes/UnitedNations flag or logo; UsefulNotes/TheRedCross (Johnson & Johnson [[GrandfatherClause can still use the Red Cross for cotton in the United States because they were using it more than 100 years ago before the symbol was protected), protected]]), Red Crescent (some Muslim countries) or Red Crystal. (The Red Crystal got created because the Arab countries wouldn't put up with the use of a red Star of David as the Israeli Red Cross used, so they picked something less offensive.)
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