Trademarks: Nice Try, Mazda- by NEIL SISKIND

Generally, trademarks are established and protected in either (or both) of two ways: (i) Through actual and uninterrupted use; and/or (ii) through registration with the USPTO.

Irrespective of the way that one goes about attempting to establish and claim exclusive rights to a trademark, the “mark” has to be “protectable”- meaning that it has to be unique (and, of course, not in use by some other person or company). The use of everyday words and phrases, by and large, won’t pass the test.

Moreover, the word or phrase on which trademark rights are being claimed must actually be regularly used in connection with a product or service. One can’t just claim a trademark, but then never actually use it as a trademark, and still be able to maintain the rights to that trademark.

More and more, companies are making television commercials where they are attempting to claim exclusive trademark rights to commonly-used words or phrases by placing the trademark notice “TM” next to that word or phrase to ensure that no other company can use such word or phrase to sell the same or similar products.

Here’s an example:

In a recent Mazda commercial, at the end of the commercial, the following phrase appears on the screen:

“Feel Alive”

Next to the phrase, there is a “TM” to indicate that Mazda is attempting to establish the phrase as its exclusive trademark for the sale of cars, with such phrase to be used exclusively by Mazda. This would mean that no other car company can say or write “feel alive” when talking about or trying to sell its cars … which, of course, is ridiculous- and such trademark would not be enforceable if Mazda challenged another car company’s use of this phrase.

The “TM” or “poor man’s trademark” is very useful if a trademark is protectable- but, it’s not magical, and can’t turn an unprotectable word or phrase into such.

The one great thing about this method of establishing a trademark is that it makes a costly and complicated concept- establishing and protecting trademarks- into a simple, cost-free task. You can’t say that too often about IP … or about the law, in general.



Neil S. Siskind, Esq., President
The Siskind Law Firm
Tel: 646.530.0006

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