From goffmac747@aol.com Mon Sep 24 04:47:42 2007
Subject:Re: "clonewheel' trademark, was: Diversi
I still say, try it... the japanese make products with all sorts of generic names. the most popular car in the world today is the Honda Jazz..
-----Original Message-----
From: tonysounds
To: CloneWheel@yahoogroups.com
Sent: Mon, 24 Sep 2007 11:45 am
Subject: Re: "clonewheel' trademark, was: [CWSG] Diversi
As I stated earlier, Clonewheel would be tough to trademark because it has already been in use in the intended marketplace to describe a type of product (a Hammond organ impersonator). That's why it is unlikely to be granted trademark status. The fact that is a unique term, fanciful, is why it could be granted trademark status, if only it was a brand new term with no history.
stateofmin@aol.com wrote: A trademark is a name which associates particular goods with a specific
company. Coke is a trademark of the Coco Cola company and associated with a
specific soft drink. It identifies the soft drink Coke. Anyone who thinks Coke
is not a protected mark has never been sued by the Coco Cola Company for
infringement. The company aggressively enforces its rights.
"Clonewheel", by definition, is not a trademark at all. It refers to a
class of goods, i.e., any manufacturer's keyboards which simulates the sound of a
Hammond organ. In fact, if someone tried to trademark it to identify a
specific keyboard product, I think they would have problems. And it would make
little sense to use a name which is identified loosely with a entire class of
goods and claim it for oneself. The purpose of a trademark is to distinguish
your goods from others.
It is a "made up" name which aptly describes Hammond clone organs. That is
how the English language evolves. Ever since the Internet came into being,
all kinds of new words have been created. They are not trademarks.
Trademarks are registered at the federal level by a classification system.
In trademark lingo, "fanciful" marks are granted the strongest protection
because they are the most likely to associate a name with a specific set of
goods. For example, Exxon is a fanciful mark associated with Exxon gas. Since
Exxon means nothing to most people, the name can only be associated with the
specific goods of a specific company.
The worst marks are descriptive and many of them cannot even be enforced or
enforced well. If I called a shoe store, the Shoe Store, it is a name but a
laughable tradename. It is completely descriptive and doesn't distinguish
your goods from the goods of any other shoe store. (On the other hand, the
band named "The Band" somehow was successful is using a completely descriptive
name as a form of tradename. I have no idea whether their name was
trademarked or not).
First to file at the federal level does not necessarily "win." Trademark
law is a complicated mixture of federal, state and common law. Federal
trademark protection gives the owner certain statutory rights which go beyond
common law. In fact, establishing "first use" in commerce is critical in a
litigation over the enforcement of a trademark in many situations. There are many
owners of trademarks who might have rights as to a mark except in certain
geographic areas where another use was established earlier.
Although I am not a trademark specialist, my father was for over forty
years. I spent many hours doing trademark searches as a kid. As a
lawyer/musician, this is probably not an appropriate site to debate trademark law and
anyone who wants to protect a mark should see a good intellectual property lawyer.
There are areas of gray and screwing up can be costly.
Rick
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