[nafex] Re: Trademarks, copyrights etc.

fuwafuwaosagi fuwafuwausagi at muchomail.com
Wed Jan 30 20:56:11 EST 2002


Hello:

It was queried:

What is involved in protecting a name (like Paulared, Imperial Gala)?
Is it a trademark? A copyright? How long is the name protected? How
big a deal is it to protect that name?

My reply:

Oh boy..."ya'll certainly picked a doosey"  :)

A trademark is a unique "thingy"...
A tradename is well, not a "thingy" but an abstraction, like 
a "name"...

For example "the fluffy bunny" could be a tradename in Illinois for 
well, little ol' fluffy me...

However if I could meet the legal challenge I could trademark the 
following:

  ^   ^
 ( ) ( )
 ( ) ( )
( o   o )
(   *   )
 ( <-->)

So a tradename is an abstraction, a trademark is a physical 
representation.

Here are a few problems:

Tradenames and Trademarks are given on a State by State basis and on 
a National level.   The costs are greatly more for a National 
basis.   Basically you have to make every effort to find out if 
the "mark" or "name" is being used in any context in the Nation.   In 
other words just because someone else has not trademarked something 
does not mean you can trademark it.  If I can prove I used the 
trademark before you, or at the same time you are simply out of luck
(well you can get limited geographic territories). 

The same type of logic applies for a tradename.   However there is 
one huge difference between them.  Sanctions may be assessed to the 
injured party for violation of a trademark, no such legal remedy 
exists for violation of a tradename.  In other words I can violate a 
tradename without repercussions, providing that no injury results to 
a consumer.  Trademarks protect the owner of the trademark, 
tradenames are designed to protect the consumer.  In order for the 
courts to intervene in a tradename dispute you have to prove that a 
consumer was hurt by misuse of the tradename.  In other words a 
consumer needs to suffer damages.  And by the by, guess who the 
damages go to?  Yes, the consumer.  

For example if I start up "fluffy bunny carpet cleaning" and 
trademark the name in say 1995, and Mr. Evil sees that I make a lot 
of money and starts up "fluffy bunny carpet cleaning" in 2002 and a s 
a result some of my customers are serviced by the evil fluffy bunny, 
I am not automatically entitled to damages, and Mr. Evil is not 
necessarily in danger of a legal remedy.

I would have to find a consumer that was materially damaged by the 
chicanery of Mr. Evil. Mr. Evil could even admit he took the 
name "fluffy bunny carpet cleaning" while knowing I was using it and 
still not fear a legal remedy.  Why, because a consumer must have 
been damaged.   Now if I could demonstrate that somehow my carpet 
cleaning was superior (I steam clean and he soap cleans)and that his 
method tangibly and demonstrably damaged the clients carpet, or 
diminished its value then the customer would be entitled to 
compensation.  As for me the trade name owner, well that is up to the 
judge.  He might award punitive damages to me, or the customer.

Anyway..it is a complicated issue.

As always, wishing you the best,

the fluffy bunny



   
    





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