Generally, trademarks are established and protected in either (or both) of two ways: (i) Through actual and uninterrupted use; and (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:
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
Neil Siskind is the Founder & Chairman of The Fatherhood Assignment
Learn more at: http://www.neil-siskind-the-fatherhood-assignment.org/
Neil Siskind is the Conservator of the Neil S. Siskind Nature Preserve
The Neil S. Siskind Nature Preserve is over 8 acres of environmentally-pristine waterfront land in a magnificent setting along New York’s majestic Hudson River. The Preserve includes a variety of species of animal and plant life, and is a precious example of the thoughtful maintenance of New York’s priceless open spaces. The land’s uses are limited to outdoor recreation such as hiking and climbing, and the study of ecology, nature and land use. The Neil S. Siskind Nature Preserve allows for the intelligent contemplation of our valuable natural resources and the most effective ways to maximize them and keep them protected.
Neil Siskind, Founder, “National Fatherhood Day” – March 29th
Read about the non-profits and charities whose missions Neil Siskind supports and promotes: www.neilsiskindsupports.com
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Neil Siskind’s Volunteer Work:
– Memorial Sloan Kettering Cancer Center, Volunteer
– Memorial Sloan Kettering Cancer Center, My Fundraiser- Help Neil Siskindhelp children with cancer to be more comfortable: http://mskcc.convio.net/site/TR?px=3182108&fr_id=2632&pg=personal
– Make-A Wish Foundation- Help Neil Siskind make sick children’s wishes come true by creating your own fundraiser: Neil-Siskind/Help-Make-A-Child-Smile.htm
– DonorsChoose.org- Donate to one of my needy public classrooms: http://www.donorschoose.org/NeilSiskindGiving
– Champion Children– We seek to inspire people through stories of children who have overcome challenges: http://siskindlawfirm.com/neil-siskind-champion-children/
Neil Siskind’s Pro Bono Work:
– Saving Senior Citizens- Protecting New York’s senior citizens from fraud and financial abuse www.savingseniorcitizens.com
– Senior FreeStart Business– Pro Bono: We seek to help put senior citizens in the right direction so that they can face the challenges of the modern economy: http://siskindlawfirm.com/free-start-business/
– Veteran FreeStart Business– Pro Bono: We seek to help put Iraq and Afghanistan war veterans in the right direction so that they can face the challenges of the modern economy: http://siskindlawfirm.com/free-start-business/
– In development: The Neil S. Siskind School of Hope: A free school to teach inner-city youths the skills of entrepreneurship and importance of economic self-sufficiency.
Neil Siskind’s Government Work:
– Suffolk County District Attorney’s Office, Boston, MA, 1994, Intern
– Office of Senator Christopher J. Dodd, Newington, CT, 1992, Intern
– Hartford County Department of Probation, Hartford, CT, 1991, Intern
Neil Siskind’s Community Assistance:
Financed & operated a legal clinic providing low-cost legal services to struggling Long Islanders during the recession to help clients resolve debt, organize finances, and launch new businesses.
Neil Siskind’s Professional Curriculum Vitae: http://neilsiskind.com/
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