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One fine afternoon as I, Mark Tradey, was playing basketball with my friends,
Pat and Reggie, I suddenly remembered that I had some homework I’d forgotten
to do. I decided that it would have to wait until after the game
because things were getting pretty interesting. Pat, who normally
did not play very well, was having a fabulous day. |
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When I got home, I took out my homework assignment, which was to write
an essay on trademarks. I could tell that this was going to be a
difficult essay to write. Then I remembered that Reggie was in my
class and would have the same assignment. I could call him on the
phone, and ask him how far he had gotten. I dialed his number and
Reggie answered.
“Hey what's up Mark?" said Reggie. "I was just going to call you about
this trademark essay we have to write. Did you write yours yet?
I need to know what you wrote so I can copy it down. The teacher
will never know the difference." |
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“Oh no,”
I said to myself, "what should I do now?" Not only hadn't I
written my own essay, but now I would have to find a way to not share it
with Reggie when I did finally do it. I might get into trouble with
my teacher, and Reggie might get mad at me if I didn't share my essay with
him. With a pang of guilt, I told Reggie that I was still planning my essay
and that I wanted to learn what I could about trademarks - and that I wanted
to work ALONE.
“Aw, man,
that's not cool. Speak to you later,” said Reggie, and he hung up.
Now I
was in a jam. I didn't want to go to the library to get books on
trademarks, so I decided to use my computer and look them up on a CD called
Encarta(TM). "Oh boy, that's some definition!"
I sighed. "This is going to take a while to understand."
This is
what I found in Encarta(TM): |
|
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| " A
trademark is any symbol used by manufacturers or merchants to identify
their goods and distinguish them from those made or sold by others. A trademark
identifies the source of a product and fixes responsibility for its quality.
On several occasions, words intended by manufacturers to be used as trademarks
were instead, used by customers to name general categories of goods. Such
words then lost their legal status as trademarks. Examples include ‘aspirin’,
‘cellophane’, and ‘escalator’. The current federal trademark law
in the United States, the Lanham Act, was enacted in 1946. In each state
anyone who uses a trademark acquires the legal right to prevent others
from subsequently using a similar mark. Many states register trademarks
to maintain a public record and allow others to search the record before
choosing and using a new trademark. In the Lanham Act, the Congress of
the United States has provided a nationwide register of marks. A trademark
may not be registered until it has been used in interstate commerce, although
someone may apply to register a mark based on intent to use the mark in
the future.
Trademarks are federally registered in the U.S. Patent and Trademark Office
of the Department of Commerce. When a trademark owner applies for
registration, the office will examine the application to see if the mark
meets the conditions of federal law. Under a 1996 revision to the law,
the owners of famous trademarks may seek to prevent use of similar marks,
even if used by unrelated products. Anyone who uses a mark so similar
to a registered trademark that it is likely to cause customer confusion
is an infringement and can be sued in a state or federal court. Unlike
patent or copyright infringement, trademark infringement is defined solely
by the likely confusion of customers. The usual remedy after a court trial
finding trademark infringement is an injunction prohibiting the infringer
from using its mark.
A trademark can be sold or assigned when a company is sold. It can also
be licensed to others to use as long as quality-control provisions are
in effect. Most fast-food outlets or other franchised businesses are licensed
to use the trademark of the parent company."
(Copyright Microsoft Encarta Online)
|
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| "I need a translator,
or maybe even a lawyer to understand this," I thought. "Is this in
English? How is a kid supposed to understand this?" I
knew I was in trouble, because it was getting late. My mom and dad
would be mad that I had played basketball all afternoon instead of finishing
my work on time. My only hope was my Aunt Libby, who is a lawyer.
I picked up the phone and dialed her number. "Aunt Libby, it's me,
Mark Tradey. I'm in hot water. I need help with an essay on
trademarks. Do you have some time to explain them to me?" I asked. |
"Hi, Mark.
You are in luck!" she said. " I just finished my work for tomorrow.
Encarta(TM)? You're looking at the Encarta(TM)
definition of trademarks? Let me bring up my copy on the screen and
we'll go through it step by step."
That Aunt
Libby could be a lifesaver, and she could keep a secret. |
| "Sentence
one," Aunt Libby began, "means that there are things that are made (goods)
that may have a symbol on them. That symbol belongs to the people
or companies (merchants or manufacturers) that made them. Everyone
can recognize a particular symbol and know that it belongs to a particular
person or company. Symbols are different from one another so that
people and companies can tell them apart and know who made which items
(goods)." |
"Uh oh
-- and that's just the first sentence," I thought.
"Let's
continue," said Aunt Libby. "A trademark, or symbol, lets everyone
know where the product (item) came from and that's a way of telling
people who is responsible for its quality. There were some times
when words that were meant to be trademarks, or symbols, were used in a
general way to describe something that many different companies or people
made. The law then decided that those words couldn't be trademarks
anymore because they were used to describe something in a general way.
Let's take the word 'aspirin'. Now people use that word for something
they take for a headache or cold, but 'aspirin' doesn't refer to any particular
company anymore as more than one company makes a type of 'aspirin'.
Then there's 'cellophane'. Today, 'cellophane' is a clear plastic
wrap used to cover items. There are many different companies that
make 'cellophane' so the word is not a trademark anymore. If you
ride the 'escalator' you are on moving stairs going up or down in a store.
Those can be any moving stairs, not stairs made by a particular company. |
| "In 1946,
the U.S. passed a trademark law called the Lanham Act. If affects
every state in the U.S. and it gives anyone using a trademark the right,
according to the law, to be the only one allowed to use a particular symbol.
If a trademark is yours, then no one else has the legal right to use it,
or anything similar to it. Each state keeps track of all the trademarks
by having companies and people register their trademarks. By keeping
track of all the trademarks, anyone can search the list (the record) before
choosing a new trademark. That way companies and people make sure that
they don't choose a symbol that someone already registered. In order
to register your trademark (symbol) you have to use the symbol on whatever
you are selling from state to state. You can apply to register your
trademark if you intend on selling something in the future which has your
trademark on it. |
| "Who has
a list of all the trademarks? A special office called The U.S. Patent
and Trademark Office of the Department of Commerce (commerce means trade
for business purposes) had to be created for patents and trademarks because
there were so many of them. When someone applies to register
a trademark, that office will look at the application and check to see
if the symbol meets all the requirements according to federal law. |
| "In 1996
there was an important change in the law. The new law allowed the
owner of famous trademarks (symbols) to ask the government permission to
prevent another company or person from trying to use a symbol that was
similar to theirs. It didn't matter if the symbol was being used
to sell something very different from the item the original symbol was
used for. The idea behind the new law was to avoid confusing
customers. If you saw a symbol that you thought you recognized on
a new product (item) in the store, you might think a company that you
knew had made that item. You might buy the item thinking that a certain
company made it because the symbol looked very much like a symbol on something
else you bought. If a symbol is almost identical, but not quite the
same as another symbol, that might confuse buyers in the store. The
"look alike" symbol was made by an infringer who is trying to pretend that
the item was made by a company or person people recognize. If a copycat
symbol confuses the public, the person who owns the original trademark
can sue in a state or federal court to prevent the copycat symbol from
being used. |
| "Copyright
and patent infringement (using someone else's copyright or patent) is different
from trademark infringement. Trademark infringement simply means
that a company or person tried to confuse customers into believing they
were buying something made by a particular company, when in fact, it wasn't.
Usually the courts solve the problem by telling the makers of the copycat
symbol or trademark that they are not allowed to use that symbol anymore. |
| "When a company
is sold, the trademark can be sold along with it. It can also be licensed
to others, which means that certain other companies sign an agreement to
use that symbol for certain things with a company's permission. It
usually means the company that gave permission knows that this symbol will
appear on certain things and that those things live up to a certain quality.
Franchised fast-food restaurants are one such example. A franchise
means that many different people can each own a particular kind of restaurant,
but that they must run the restaurant in a certain way with certain foods
if they want to use a particular trademark. The hamburgers or french
fries used, for example, must be the same as the company that allows the
trademark to be used, or permission to use the trademark is not given by
the original owner of the trademark (the parent company)." |
| "Whew!
Thanks, Aunt Libby. I couldn't have done it without you." |
| Now that
I was beginning to understand it, the subject of trademarks was actually
getting interesting. I did some more research and decided that trademarks
could be cool. I thought about the possibility of one day designing
a trademark for a company making a cool product. Then I'd look back
on the night Aunt Libby explained the definition of trademarks to me. |
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| I found
further information regarding trademarks in a book called Graphic Artists
Guild Handbook, 9th edition, "Trademarks identify the source of goods
or services. Marks that identify the source of services rather than goods
typically are referred to as service marks (e.g., the Graphic Artists Guild
logo, the Guild's service mark appears in print with an (R)
Normally, a trademark for goods appears on the product or its packaging,
while a service mark usually is used to identify the owner's services in
advertising. The protection given to trademarks and service marks is identical."
The cost of applying for an original trademark is $245. Software products
such as Encarta(R) generally are protected by a service
mark (R). Sometimes certain sounds, shapes and
configurations can be used as trademarks. McDonald's(R)
golden arches and AOL's(R) "You've got Mail" would
fall into that category. The protection for trademarks can last indefinitely
if the mark is used for what is was originally granted. The owner of a
federal trademark registration may give notice of registration by using
the (R) symbol. Trademark owners who do not
have federal registration must use the symbol TM (for
trademarks) and SM (for service marks)." |
..
| I had to look
up some words to make sense of these definitions and other words which
I came across when researching trademarks. |
..
| Copyright: a notification which establishes protection and ownership
of printed, graphic or video materials
Patent: similar to a copyright but used to protect devices or
processes of manufacturing
License: permission given to someone to use copyrighted material
or trademarks (franchises are a form of licensing)
Infringement: a term used when someone makes a product, story
or symbol that too closely resembles a trademark or copyrighted material
Plagiarize: the use of copyrighted material without giving
proper recognition to the source of the material
(Good thing I read about this or I wouldn't have known to cite the information
above. If Reggie or I had copied each others work we
would have been plagiarizing each other.) |
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| As I continued
to read, I realized how much information there was. I knew that once
my essay was written I would still want to do some more research.
I began to plan what I wanted to write. I knew I had to be careful
to put my newfound knowledge into my own words and to acknowledge the sources
I needed to quote. Now I knew that a trademark was a symbol representing
a company or product which, once obtained, gives the holder legal rights
regarding the use of the trademark and the products related to it.
I also knew the differences and similarities between (TM),
(SM)
and (R). |
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| When my
essay was completed, I read it over and realized the value of trademarks.
They are important in our everyday lives. Most of the products we buy from
food to clothing are represented by different trademarked brands.
We have come to expect a certain quality, consistency and reliability that
a trademarked brand represents, such as tasty fries at McDonalds (R).
When someone infringes on a trademark, they are usually denying the proper
owner money as well as cheating the consumer. I remember how sad
my little brother was when he once got bootleg (counterfeit) Pokemon cards
and I received a bootleg video as a gift. Both of those items were
severe violations of trademarks, licenses and copyrights. The quality
of both was poor and the consumers (us) were cheated. The closed
captioning didn't work on the video making it worthless for deaf people. |
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|
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I remembered my friend Pat, and
how he had been playing basketball so fabulously earlier in the day.
He appeared to me to have been using some of Michael Jordan’s great
moves. That's what had made his playing so fabulous. I thought
about how Jordan's moves were kind of like his unofficial trademark
and how glad I was that they were not registered with the government.
I also wondered since dance steps can
be copyrighted, would basketball moves be copyrighted or trademarked in
the future? I did go to the NBA(R) site to see
if I could capture a picture of Michael Jordan doing one of his moves but
the site does not allow the reuse of any of their material without written
permission. So instead I decided to draw my pictures of Michael and compare
him to Pat.
I also remembered how, when I
was a little kid, for Halloween, I would dress up as a triangle monster
and my dad would say that I looked like the AOL(R)
trademark. He joked around that I would get arrested. Luckily intent
has a lot to do with infringement of copyright or trademarks and many companies
and authors let you use copyrighted material for educational purposes without
charge as long as proper citation is used. |
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| Online was a good source for my
paper and below is one type of authorization to use information found at
Encarta(R) online. |
| The following is a sample of the terms of use at the Microsoft Encarta
Online Web site:
"Permission to use documents (such as articles and other
text) and related graphics (such as images, photographs, maps, charts,
and illustrations) available from Encarta Online is granted, provided that
(1) the proper credit and Microsoft copyright notice appears on all copies;
(2) use of the documents and graphics available from this Web site is for
informational and noncommercial or personal use only; and (3) no documents
or graphics, including logos, available from Encarta Online are modified
in any way. Use for any other purpose is expressly prohibited by law, and
may result in severe civil and criminal penalties. Violators will be prosecuted
to the maximum extent possible."
(Copyright Microsoft Encarta Online)
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When I handed in my essay, I got
an A+!!! Reggie got a D- because he just copied a paragraph and the
teacher took off points for plagiarizing from Grolier’s(R)
encyclopedia without his citing the information source.
I am sure that as time goes on,
I will learn even more about trademarks, and so will Reggie. I'm
also sure that in the future Reggie will cite everything he uses for information.
We may even work for some new company someday, and I will design the trademarks
for all of their products. I will look back on that fine day when
I was a kid and learned all I could about trademarks and how and why I
should protect them. |
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