What is a Trademark?
A trademark must be capable of identifying the source of a particular good. Thus, ite must be be "distinctive." In determining whether a mark is distinctive, the courts group marks into four categories, based on the relationship between the mark and the underlying product: (1) arbitrary or fanciful, (2) suggestive, (3) descriptive, or (4) generic. Because the marks in each of these categories vary with respect to their distinctiveness, the requirements for, and degree of, legal protection afforded a particular trademark will depend upon which category it falls within, with arbitrary of fanciful given the greatest protection, and generic given no protection at all.
Trademarks are governed by both state and federal law. Trademarks arose originally from common law. Since the late1800s, federal trademark law originated, taking over much of the ground initially covered by state common law. The main federal statute is the Lanham Act, which was enacted in 1946 and most recently amended in 1996. Today, federal law provides the main and the most extensive source of trademark protection,
The use of another's mark in connection with the sale of good or services infringes another's rights if it is likely to cause consumer confusion as to the source or origin of those goods or services. In deciding whether consumers are likely to be confused, the courts will typically look to a number of factors, including: (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 similarity of marketing channels used; (6) the degree of caution exercised by the typical purchaser; (7) the defendant's intent.
A successful trademark owner is routinely awarded injunctive relief against and infringer further infringing or diluting use of the trademark. Monetary relief may also be available, including: (1) defendant's profits, (2) damages sustained by the plaintiff, and (3) the costs of the action. Damages may be trebled upon showing of bad faith.