Similarity of Products or Services Similarity of products and services does not necessarily mean that the products are in the same broad industry, but that the products under each business might be connected in the mind of the average consumer.
Similarity of Marketing Channels Courts generally measure similarity of the marks through the lens of how they are encountered by consumers in the marketplace. Evidence of similar marketing channels includes the mediums by which the parties advertise billboards, internet ads, commercials, etc.
In many cases, the courts have held that consumers of more expensive goods and services make such decisions to purchase with a higher degree of care. For example, a consumer purchasing a car or computer will be a more sophisticated customer than a consumer who purchases a burger and fries. Trademark dilution occurs by blurring or tarnishment, and is commonly lumped together with infringement, as two of the most commonly seen offenses involving tradenames.
Simply put, dilution occurs when the original mark is blurred or tarnished by the unauthorized use of a newer, similar mark. Both infringement and dilution claims involve one entity exploiting the mark of another, but the difference lies in the reaction of the consumer.
In most New York trademark infringement claims, there are two similar marks from different entities that represent similar things, which is ultimately confusing to consumers. For legal assistance regarding dilution claims, consult with Denton Peterson, P.
It is important to remember that dilution claims are only valid when the original mark has been determined to be famous. This is a decision made solely by the courts through a number of factors, including:. An important point to note here that trademark dilution claims being brought to the New York state courts do not require the original mark to be famous in order for the claim to be valid.
But, if federal courts determine the original mark is, in fact, famous, the dilution claim can be brought against another entity for any unauthorized use that ultimately dilutes the distinctive quality of the original.
Dilution by blurring is what happens when the distinctiveness of the original famous mark is impaired or blurred by association with a similar trademark or tradename. Once a claim has been brought to court, the judge will decide if blurring has actually occurred by analyzing the situation surrounding the offense. The factors used include:. Though trademark tarnishment can be accomplished in a variety of ways, such as linking the mark to sex, drugs, crime, or low quality goods, the ultimate result is that the original trademark is degraded.
Consumers then associate the original entity with the new trademark, thus decreasing the overall value of the mark. Contact Denton Peterson for any questions regarding trademark tarnishment. Rest assured that if you are the victim of trademark infringement or dilution, a reputable legal team can put up a strong defense for your case! Ultimately, having a knowledgeable, confident trademark attorney on your side is critical for the success of your trademark.
Continue reading to learn more about which claims a defendant should challenge. Generally, nominative fair use is permissible when 1 the service or product in question is not otherwise identifiable without using the actual mark, 2 only so much of the mark as is reasonably necessary to identify the service or product is used, and 3 use of the mark does not suggest any kind of endorsement by the owner of the trademark.
The idea here is that if the use is clearly a parody, then it is unlikely to cause confusion or dilution among consumers. This statutory provision applies only when the parody is a fair use, where the non-owner is not using the mark as a designation of source for its own goods and services. Call our Chandler location at the number below to book a consultation with a knowledgeable lawyer at Denton Peterson Dunn. Use the information below to set up a consultation via email with our competent, skilled team of lawyers.
New York Trademark Attorneys. Skilled Professionals. Personal Service. Exceptional Results. Get Started. Best Way To Reply: Email. Why Are Trademarks Important?
What Is a Trademark? Trademarks provide some of your best defenses against unfair competition. Trademarks make it easier for your customers to locate and identify your business. Trademark law prevents businesses from misleading consumers by disallowing use of the same or similar business names and other identifiers. If I want to buy a Coca-Cola at the store, then I can rest assured that the can that actually says Coca-Cola is from Coca-Cola and not some mediocre knock-off.
Customers viewing a trademark immediately recognize who they are actually buying from, which also helps to preserve the reputation of the business and discourage consumers from finding an alternative. Trademarks prevent marketplace confusion. Trademarks prevent marketplace confusion by giving customers the ability to protect themselves from wasting money on a product they do not like.
For this reason, consumers tend to return to the brands that work well for them. In fact, you keep going back every few months to buy a new pair because they fit so well. Without trademark law, you would run the risk of buying a product from a different company every time you purchase another pair, even though they all bear the Brooks name and logo. Furthermore, confused consumers would not know where to return defective products. With trademark law protecting business brands, consumers may trust that what they are buying is from the brand they expect.
Trademarks allow businesses to more effectively utilize the internet, especially social media. Trademarks are some of your most enduring and valuable business assets. Your trademark can be purchased, sold, licensed, franchised, or even used as a security interest to obtain more money for your business. Richard Liebowitz, Esq. His passion for photojournalism led him to enroll in the Maurice Deane School of Law at Hofstra University and devote his professional practice to making sure creative artists receive the full protection of the laws that exist for their benefit.
Have Questions About Copyright? We are Here to Help. Richard Liebowitz Esq. Pictures are used without licensing agreements. Images are used beyond the scope of licensing agreements, should they exist. I was advised by all of them that due to the circumstances of my case they would not be able to aid me in pursuing any form of lawsuit. Upon reaching out to the last Firm here in Georgia I was again advised that they did not feel I had a case but if I did, it would need to be filed in North Carolina.
I contacted a Firm in North Carolina and was advised they did not specialize in the type of law I would need for my case. They were nice enough to give me his name and contact information. When reaching out to attorney LeJune he listened to all of the facts of my case and assured me he would do everything in his power to bring justice to my situation. LeJune literally took my case from several attorneys telling me I had no case, to winning me a settlement that will afford my son a college education.
To him my family is forever thankful. Over the years Sullivan Home Plans has had its works stolen by various builders, and even other designers. Sullivan Home Plans. We were able to scan the tea box image, enlarge it to the size of the calendar, make it into a transparency and overlay it over the tea box image. Substantial similarity!
Dana did a great job, and I would never go anywhere else for advice on copyright issues. Attorney LeJune returned a phone call to me to let me know that he was not the attorney I needed for the complaint I had! He does copyright and we needed trademark infringement litigation!
He listened to my complaint and gave me several suggestions that I could do to help myself! I really appreciate the time he spent with me on the phone knowing that I was not a potential customer! I think this means that this attorney cares for the people and the community he serves! I would highly recommend Attorney LeJune to any client needing his services!
However, not all uses of copyrighted material are unlawful. Copyright law is complex, and you may be able to offer proof of innocence or take advantage of certain defenses available to you.
If you are accused of infringement, a knowledgeable copyright attorney can inform you of available courses of action and ensure your rights are protected. Copyright law protects original works of authorship that are fixed in a tangible medium i. Where a valid copyright exists, only the copyright owner has the right to transfer or grant permission to others to use the work. As a result, if a third party uses a copyrighted work without authorization, that party may be liable for copyright infringement.
In order to establish copyright infringement, the plaintiff must show that 1 they are the owner of a valid copyright in the work or they have the legal authority to bring a lawsuit, and 2 the defendant actually copied the copyrighted work. Copyright registration is often evidence of the first prong. Infringement can be difficult to prove. As a result, defendants need an experienced attorney to raise any legitimate questions as to whether the plaintiff has established the elements of an infringement claim.
In addition, even where plaintiffs can establish a basic claim, defendants may have affirmative defenses to the action. If a work is no longer protected by copyright law, a defendant cannot be liable for infringement. A copyright in a work does not last forever. Eventually, the work goes into the public domain. That means it is no longer protected by copyright law, and anyone can use it without permission.
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