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PUBPOL 373 (27)
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Lecture 18

PUBPOL 373 Lecture 1: October 25th Reading Notes
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Department
Public Policy Studies
Course
PUBPOL 373
Professor
Frey
Semester
Spring

Description
October 25 Reading Notes Federal Trademark Registration:  Requirements are that the mark must be used in interstate commerce; the mark must be distinctive; and the mark must not be barred from registration (same rules apply for protection of an unregistered trademark against infringement  Validity comes from registration or distinctive use in interstate commerce  Federal registration initially provides prima facie evidence of validity; after five years of continuous registration and use, federal registration provides conclusive evidence of validity.  Any person who believes that he would be damaged by registration of the mark can file for an opposition within thirty days of the mark’s publication  For Intent to Use apps, if the mark is not successfully opposed, then the applicant receives a notice of allowance. Within six months of the notice of allowance, the applicant must establish use of the mark in interstate commerce.  The trademark owner must maintain the mark and continue to use the mark to maintain his rights.  If a mark has been registered and used continuously for five consecutive years, then the mark is incontestable and can be challenged only if the mark is generic or the mark is a collective mark that is not being properly used.  Supplemental Registration can be sought for descriptive marks or surnames that might not meet the distinctiveness standard required for the principal register. Allows the trademark owner to sue in federal court for trademark infringement but provides none of the evidentiary advantages of registration on the principal register, such as presumptions of validity or constructive notice, and does not allow the owner to stop unauthorized importation of the mark. Mountain Top Beverage Group Inc. v. Wildlife Brewing N.B., Inc.  Plaintiff had not yet contracted with a brewer to produce a Wildcat product at the time the SOU was filed, and the brewer with whom Skinner companies were in contact could not even quote a price yet let alone have produced a shipment of the actual brew  The shipment of sample packaging alone before the product is in existence is insufficient and was held to not even constitute a token use  Until they are in actual existence the mark had not been used  The talismanic test for use in commerce remains whether or not the use was sufficiently public to identify or distinguish the marked goods in an appropriate segment of the public mind as those of the adopter of the mark. Kellogg Company v. Toucan Golf, Inc.  Kellogg’s trademarks consists of a simplistic toucan design, drawn with an exaggerated, striped beak, standing in profile with hands on hips and smiling; another version of the same toucan, standing and smiling with his mouth open widely, and pointing his left index finger upward; A shaded drawing of Toucan Sam flying, with wings spread, and smiling; Kellogg’s marks are for use in the breakfast cereal industry, and on clothing  TGI likewise uses a toucan drawing, known as “GolfBird” or “Lady GolfBird,” to represent its products; has a multi-colored body, and TGI displays GolfBird in a myriad of color schemes for different purposes. She has a long, narrow, yellow beak with a black tip, not disproportionate to or unlike that of a real toucan. GolfBird is always seen perched upon a golf iron as if it were a tree branch. She has no human features whatsoever, and resembles a real toucan in all aspects except, perhaps, her variable body coloring.  The court found that confusion was highly unlikely, principally because Kellogg is in the business of selling cereal, whereas TGI is in the business of selling putters.  Likelihood of confusion is based on: the strength of the plaintiff’s mark, the relatedness of the goods or services offered by the parties, similarity of the marks, any evidence of actual confusion, the marketing channels used by the parties, the probable degree of purchaser care and sophistication, the defendant’s intent, the likelihood of either party expanding its product line using the marks  The “Toucan Sam” word mark is fanciful. Toucan Sam’s unique shape, coloring, size, and demeanor are entirely the creation of Kellogg, and not reminiscent of anything seen in the wild. Therefore, as a logo, he is also a fanciful mark and distinctive.  94% of Americans recognize Toucan Sam, and 81% of children who recognize him correspond him with Froot Loops. Have extensive records detailing the massive amount of time, money, and effort expended in regard to the marketing of Toucan Sam and Froot Loops  Kellogg is the largest cereal maker in the world, Froot Loops is one of is best-selling cereals, and Toucan Sam has appeared in every print and television advertisement for Froot Loops since 1963 enough to establish that Toucan Sam is visually recognizable by an overwhelming cross-section of American consumers.  If the parties compete directly, confusion is likely if the marks are sufficiently similar. If the goods and services are somewhat related, but not competitive, then the likelihood of confusion will turn on other factors. If the products are unrelated, confusion is highly unlikely  TGI has never sold any merchandise unrelated to golf  Kellogg is primarily a producer of breakfast cereal but has branched off from cereal and sold products in other industries on a limited basis. It has also at time licensed its name and characters to outside companies.  Kellogg presented a catalog wherein it offers for sale golf balls and golf shirts on which is imprinted the picture of Toucan Sam  Kellogg presented a mass-marketed 1982 animated television advertisement wherein Toucan Sam is portrayed soliciting his Froot Loops on a golf course, and interacting with a golf-playing bear,  The golf balls and shirts are available on a limited basis and the commercial is an advertisement for Froot Loops, not golf equipment  No consumer would associate Kellogg with top-line golf equipment based on Kellogg’s extremely limited licensing of its characters on novelty items.  If any consumers ever did associate Kellogg and Toucan Sam with golf based on the 1982 commercial, it is highly unlikely that they would still do so twenty years after the advertisement last aired  The Toucan Sam and Toucan Gold word marks are similar only in that they each contain the common word “toucan.” Although the name Toucan Sam is itself fanciful and distinctive, use of the word toucan for cereal is merely arbitrary. A arbitrary mark is distinctive only
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