15.10 Infringement-Elements-Validity-Unregistered Mark-Distinctiveness is the legal term used to describe the criteria a trademark must meet in order to be valid and protected from infringement. This includes that the mark must be distinct from other marks in the marketplace, it must not be generic or descriptive, and it must not be confusingly similar to another mark. Furthermore, the mark must be unregistered, meaning that it has not been registered with the USPTO or other applicable trademark office. There are two types of distinctiveness: inherent distinctiveness and acquired distinctiveness. Inherent distinctiveness is when a mark is inherently distinctive, meaning that it is inherently capable of distinguishing the goods and services of one entity from those of another. Acquired distinctiveness is when a mark has acquired distinctiveness, meaning that the mark has become associated with a particular product or service due to its use in the marketplace.
15.10 Infringement-Elements-Validity-Unregistered Mark-Distinctiveness
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FAQ
What is the distinctiveness requirement for trademark rights? A proposed trademark must be distinctive. This means that the mark cannot be so similar to another mark that it causes consumers to confuse the brand or entity associated with that mark.
The eight factors articulated by the Ninth Circuit to be weighed in determining the likelihood of consumer confusion in trademark-infringement cases: (1) the strength of the mark, (2) the proximity of the goods, (3) the similarity of the marks, (4) evidence of actual confusion, (5) the marketing channels used to
There is a common term in the trademark world ? The Spectrum Of Distinctiveness ? which classifies marks into 5 basic categories: Generic, Descriptive, Suggestive, Arbitrary, Fanciful.
The Lapp test is the standard used to determine whether a likelihood of confusion exists between two trademarks. Under the Lanham Act, liability for trademark infringement is essentially based on a finding that the use of one trademark causes a likelihood of confusion with another previously established trademark.
In determining the likelihood of confusion in trademark infringement actions the courts look to these eight factors: the similarity of the conflicting designations; the relatedness or proximity of the two companies' products or services; strength of the plaintiff's mark; marketing channels used; the degree of care
These factors include the strength of the mark, the proximity of the goods, the similarity of the marks, evidence of actual confusion, the marketing channels used, the types of goods, the degree of care likely to be exercised by the purchaser, the defendant's intent in selecting the allegedly infringing mark and the
§ 1125(a), the plaintiff must demonstrate that (1) it has a valid and legally protectable mark; (2) it owns the mark; and (3) the defendant's use of the mark to identify goods or services causes a likelihood of confusion.