Trademark Law

An organization's name, products, slogans, and manufacturing processes are usu­ally trademarked. That means that these things are officially registered and their use is restricted to the owner or manufacturer. A trademark is legally protected and should be capitalized whenever it is used.

A trademark is a valuable asset zealously guarded by its owners. Sony, Coca-Cola, IBM, Porsche, McDonalds, and Reebok are all registered trademarks. So is the Mercedes-Benz star symbol.

Organizations and corporations protect their trademarks in various ways. One method is to establish standard policies on how the organization should use and display its trademarked names. You must know the registered trademarks of your company and how they may be used.

Companies also guard their trademarks by continually using them, sending adviso­ries to media outlets about proper use of these trademarks, placing advertisements in journalism publications reminding readers of trademarked names, and monitoring pub­lications to ensure that other organizations are not infringing on a trademark. If they are, legal action is threatened or taken.

In sum, make yourself familiar with what might be considered trademark infringe­ment. Even if you are innocent, the money and time spent fighting a lawsuit are rarely worthwhile.

Here are some guidelines the courts use to determine if a trademark has been infringed:

• Has the defendant used a name as a way of capitalizing on the reputation of another organization's trademark?

• Is there an intent to create confusion in the public mind? Is there an intent to imply a connection between the defendant's product and the item identified by the trademark?

• How similar are the two organizations? Are they providing the same kinds of services or products?

• Has the original organization actively protected the trademark by publicizing it and using it?

• Is the trademark unique? A trademark that merely describes a common prod­uct might be in trouble. Microsoft, for example, lost a bid to trademark the word "windows" for its exclusive use.