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Trademarks and Avoiding Consumer Confusion: Crash Course Intellectual Property #5 - YouTube
Channel: CrashCourse
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Hi! I'm Stan Muller, this is Crash Course Intellectual
Property, and today we're talking about trademarks.
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Trademarks are everywhere, and they can often be confusing, so today we're gonna talk about
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why just about everything seems to be trademarked,
and why trademarks are good for business.
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Mr. Muler! Trademarks don't intersect with my life,
so I really don't see why we need to cover this.
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One, its Muller, and two, just watch the video.
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[Theme Music]
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A trademark is any word, name, symbol, or
device, used to identify and distinguish goods
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from those manufactured or sold by others,
and to indicate the source of the goods, even
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if that source is unknown. This bit about
unknown sources means that you, as a consumer
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don't usually know the person or factory that
actually made the goods you buy.
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Before the industrial revolution, you often
knew exactly who was making your stuff, and
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how it was made. If you wanted a hammer, you
went to the blacksmith, and you knew his name.
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It was probably Smith.
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These days, brand names assure you that you're
buying the same product, say toilet paper,
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that you bought last time you went shopping.
You know, like the stuff with the ripples.
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Seriously though, getting the wrong medication
because of brand name confusion or counterfeiting
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could be disastrous. The rational for granting
legal protection for trademarks is that they're
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a type of property -- it demonstrates to the
purchasing public a standard of quality and
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embodies the good will and advertising investment
of its owner.
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In other words, companies expend a tremendous
amount of resources to develop the product,
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market it to customers, and provide customer
support, and back up their product with warranties.
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At its core, trademark law functions like a consumer
protection measure. It prevents consumer confusion,
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and makes it easier for consumers to select and
purchase the goods and services they want.
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For example, if you go shopping for a new
television, you don't have to sift through
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dozens of products that are confusingly similar to Samsung. Knockoffs like Samsong or Wamsung or Sony.
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You want the Samsung, maybe based on past experience, or the company's reputation, or even a funny ad.
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Because the law protects the manufacturer's
use of the trademark, you can be reasonably
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sure that the TV you're picking up at Best
Buy is the TV you saw the Verge reporters
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freaking out about at CES. Though trademarks
are often classified as intellectual property,
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the Supreme Court held, in the 1879 trademark
cases, that Congress has no power to protect
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or regulate trademarks under the intellectual
property clause of the Constitution. Which,
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as you'll recall, provides congress with the
authority to regulate and protect copyrights
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and patents. But this didn't stop congress
from regulating trademarks - they used the
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commerce clause of the constitution which
gives them the power to regulate commerce
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with foreign nations, and among the several
states, and with the Indian tribes.
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Beyond trademarks, there are also service
marks, which are very similar in that they
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distinguish one particular service. An example
of a service mark is that roaring lion at
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the beginning of MGM movies - it's registered
for motion picture production or something.
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Trade dress or product packaging is protected
if it's distinctive and nonfunctional. Like,
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the shape of a nutter-butter cookie is protected
trade dress. What they oughta trademark is
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the smell. Some people have registered smells,
but we'll get to that in a minute.
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Trademarks are symbols, and since human beings
might use as a symbol or device almost anything
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that is capable of carrying meaning, just
about anything conceivable thing can function
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as a trademark. Trademarks can be words like
Kraft or Lego, logos, designs like the Nike
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swoosh, aromas, like there's a brand of oil
for race cars that smells like cherries, sounds
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like:
*to the tune of the NBC ad* bong bong bong
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or *to the tune of the T Mobile ad* ba da
da da dong
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or *to the tune of the Intel ad* dong dong
dong dong
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or *to the tune of the McDonald's ad* ba da
ba ba baaaa.
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Even *in the manner of Homer Simpson* "Doh!"
is a registered trademark.
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You can register colors like UPS brown or
Home Depot orange or Tiffany blue or John
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Deere green, personal names like Taylor Swift
- T Swizzy's name is registered for 61 different
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goods and services, from shoes to Christmas
tree ornaments. Even containers like the Coca-cola
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bottle or this perfume bottle shaped like
a human skull can be registered. In short
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they can be almost anything that distinguishes
the product from others and which signifies
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the source of the goods.
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Despite the breadth of potential trademark
subject matter, there are some limits on what
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can be a valid trademark. Recently, a restaurant
in Texas asserted trademark rights in the
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flavor of it's pizza. One of the restaurants
former employees allegedly stole the recipe
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and opened up a competing pizza joint, selling
pizzas that tasted a lot like those made by
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his former employers. The judge rejected the
claim and dismissed the case, finding that
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it is unlikely that flavors can ever be inherently
distinctive because they do not automatically
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suggest a product's source. Also, functional
product features are not protectable under
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trademark law. Pizza has only one function
- and that's to taste delicious.
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So, there are three requirements for trademarks.
We just discussed the first one - that a trademark
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has to be a symbol or a device that a court
or the patent and trademark office deems to
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qualify. The second requirement is that the
mark has to be used in interstate commerce,
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and the third is that it has to identify the
mark owners goods and distinguish them from
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those manufactured or sold by others. It has
to be distinctive.
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Let's talk about trademarks and what makes
them distinctive in the Thought Bubble.
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Courts rank trademark distinctiveness along
a spectrum, ranging from unprotectable to
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highly protectable. At the bottom end of the
spectrum is generic. Generic names refer to
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stuff like using the word orange for the fruit
or dog for the canine or cheese for... cheese.
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Descriptive terms simply describe the goods
and convey an immediate idea of what the product
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is, such as "break and bake" for scored cookie
dough.
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Suggestive marks require some imagination
or perception to link them to the goods, like
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Sheikh for middle eastern food or Froot Loops
for circular fruit flavored breakfast cereal.
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Arbitrary marks are commonly used words used
in unexpected ways - Apple for computers,
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or Amazon for book sales, or Shell for gasoline.
The most distinctive marks are usually made
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up words. Fanciful marks are non dictionary
words such as Google for an internet search
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engine, or Clorox for bleach, or Kodak for
film.
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Fanciful, arbitrary, and suggestive marks
receive automatic protection upon use because
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they are considered to be inherently distinctive.
So the owner of the break 'n bake mark has
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to show that the consumers identify the product
with Nabisco or Pillsbury or whoever makes
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the product. I honestly don't know who makes
it, which isn't a good sign as to whether
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it's acquired secondary meaning.
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Generic terms are never entitled to protection.
This becomes important when trademarks are
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gradually assimilated into the language as
common names. Through a process sometimes
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called "genericide," the public comes to view
such names as referring to the products themselves
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rather than as distinguishing the source of
the products. As a result, the name loses
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its protection. Words like escalator, cellophane,
and aspirin were all once protected by trademark.
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This process is ongoing today and there are
a lot of modern marks that are threatened
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by genericide, like Google or Kleenex or Photoshop
or Xerox. Thanks, Thought Bubble.
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So, once an owner meets the requirements for
trademark and has a protected product they'll
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often put a TM or a little r in a circle next
to a product name or brand. The TM shows that
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the owner is asserting trademark in the product.
When you see the little circle r, that means
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the trademark has been registered with the
US patent and trademark office. Like in copyright
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law, one you're registered with the feds,
you have standing to take your case to federal
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court and maybe be awarded damages. Once the
PTO is satisfied that the mark meets all the
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requirements the application is published
for opposition. Anyone who might be affected
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by the registration has 30 days to oppose
it. If no one opposes, the mark is registered!
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The owner is then required to file affidavits
of continuous use -- basically you have to
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submit proof you are still selling the product
associated with the trademark. You have to
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do this every five years to maintain the registration.
Trademark owners can do this forever. This
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is different than patents and copyrights,
whose trademarks are DOOMED by the limited
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times language in the intellectual property
clause.
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So when it comes to trademarks, you have to
use it or lose it.
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Trademarks are often disputed, and in pretty
much every case, likelihood of confusion is
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the central issue. The principles set forth in an 1877
Supreme Court opinion in an unfair competition case:
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"What degree of resemblance is necessary to
constitute an infringement is incapable of
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exact definition, as applicable to all cases.
All that courts of justice can do, that regard,
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is to say that no trader can adopt a trade-mark,
so resembling that of another trader, as that
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ordinary purchasers, buying with ordinary caution,
are likely to be misled."
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Every court uses a slightly different set
of criteria for deciding trademark cases.
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We're going to talk about the 7th Circuit Court of the
United States' definition, which has seven parts.
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Those criteria are: One, similarity between
the marks in appearance and suggestion.
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Two, similarity of the products.
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Three, the area and manner of concurrent use,
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which means where in the United States the product is for sale.
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Four, the degree of care likely to be exercised
by the consumers.
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Five, the strength of the plaintiff's mark
or how distinctive it is.
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Six, whether there is evidence that people
were actually confused, which is a pretty
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strong sign that there's a likelihood of confusion.
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And seven, whether the defendant intended
to palm off his product as that of the plaintiff.
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These factors are going to be weighed differently
in individual cases, but the court has often
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noted that the similarity of the marks, the
defendant's intent, and evidence of actual
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confusion are of particular importance. In
addition, the Seventh Circuit has held that
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a court may consider other relevant factors
such as the party's marketing channels and
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whether a trademark is being used in a parody.
Trademark protection is also available under
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certain circumstances, even in the absence of likely or
actual confusion. The Federal Trademark Dilution Act
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benefits only famous trademarks trademarks against
a weakening of their valuable distinctive quality.
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There are two basic types of dilution: dilution
by blurring, and dilution by tarnishment.
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Dilution by blurring happens when a similar
trademark chips away at the distinctiveness
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of a famous trademark. For example, someone
selling Apple brand toilet seats or bulldozers
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will blur the ability of Apple to identify
a single source, even if people buying that
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stuff didn't think Apple computer made their
bulldozer. Dilution by tarnishment happens
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when similarity between a mark or trade name
and a famous mark harms the reputation of
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the famous mark. For example, and this is
a real case, the guy that uses the trade name
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Victor's Little Secret for his store selling
sex related products is likely to tarnish
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the famous Victoria's Secret mark. There's
no real risk of confusion here, but the company
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Victoria's Secret is seeking to prevent the
gradual tarnishing of their mark. One major
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issue with dilution is that famous trademarks
are hard to come by. While there are super
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marks, like IBM, Google, Budweiser, Microsoft,
courts have typically been hesitant to find
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less well known trademarks to be famous. It's
not like YouTube or something, where you can
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be kind of famous, your trademark has to be
really, actually, IRL famous to attain this status.
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Trademarks are fascinating, regardless of
whether you are someone who enjoys strolling
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through the shopping mall with logos firmly
affixed to your bags and coffee and clothes,
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or whether you believe brands and trademarks
have become so powerful that they have been
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internalized by modern society and dictate
our aspirations, our self image and our lifestyles.
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As we've watched Don Draper and James Bond
conspicuously guzzle Heinekens, maybe we worry
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that brands are controlling and corrupting our creative
content. Regardless, trademarks are ubiquitous.
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Trademarks help us make sound decisions about
the products we need and want. They protect
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us from knock off goods and allow us to go
about the daily business of our lives more
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quickly and more efficiently so that we can
sit down tune our Samsung television to PBS
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on our Comcast cable tuner, watch the season
finale of Downton Abbey, brought to you by
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Viking River Cruise Lines and Ralph Lauren.
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Thanks for watching, and as they say in Hank
and John's hometown, don't forget to be awesome.
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Which is not a registered trademark. Which
is how this happened:
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Tell either Eleanor or Alice not to forget
to be awesome.
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Oh! Thank you, sir!
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Crash Course Intellectual Property is filmed
at the Chad & Stacey Emigholz studio in Indianapolis,
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Indiana, and it's made by all of these nice
workers for hire. If you'd like to keep Crash
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Course freely available for everyone forever,
you can support the series at Patreon, a crowd
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funding platform that allows you to support
the content you love.
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Speaking of Patreon, we'd like to thank our
Headmaster of Learning Thomas Frank and our
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Vice Principals Kathy and Tim Philip and Linnea
Boyev. Thank you so much for supporting Crash
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Course. You can get awesome rewards for your
support. You cannot get ownership of the Crash
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Course copyright, but you can get the satisfaction
of helping people learn.
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Thanks for watching. We'll see you next week.
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