“Cola” in “Pepsi Cola” and “Coca-Cola” is generic for that type of beverage. You could not claim trademark rights in “Cola” for cola drinks.
Similarly, no one could claim trademark rights in “Kiosk” for a kiosk. You could call your kiosks “Lemur’s Kiosks” and have rights in that term, but then there would be no point in hoping back in time to do anything, because no one needs to use the term. “Lemur’s Kiosks,”
Right, and then someone else could open up “Lemur’s Burgers” next door, and get a trademark for Lemur’s Burgers. And since we’re not engaged in the same business, that trademark is valid. That’s why you can have Bob’s Burgers, Bob’s Auto Repair, Bob’s Things and Stuff, and Bob’s Sewing Shack, all owned by different Bobs and all with valid trademarks.
Or Apple Computer and Apple Music. The Apple Computer trademark was completely valid even though Apple Music already existed, because computers had nothing to do with music back in 1977.
Trademark and patent law make a certain sort of sense, but they are tricky if you aren’t familiar with the details of how and why they work.
Maybe, maybe not. (Actually, if I take your words literally and it is actually “next door,” I might lean towards “not.”) But leaving that aside, this example does not illustrate the principle we were talking about before, which has to do with generic terms.
I’m more familiar with the details how and why they work than you seem to think. I cone to that conclusion by observing that In this thread you have confused the issue of genericness with the issue of likelihood of confusion.
I didn’t mean to imply that you weren’t clear–everything you’ve said has been right on. I was making a generic remark towards the OP who didn’t even seem to know exactly what question he was asking.
Patent examiner speaking here (14 years experience as a patent examiner for the European Patent Office in The Hague): I am almost certain that such a concept would not be patentable, for reasons of lack of novelty and inventiveness.
In order for you to patent that you would have to go to a point in time where patent law (or something similar) already exists. The oldest thing that might compare to modern patent law was established in the Republic of Venice during the 15th century.
Even so, at that time patents would not deal with something as “abstract” as “selling stuff from a small kiosk/booth in a mall”. At the time, “patents” were only given to concrete inventions (preferably of interest to the state).
Those more “abstract” patents began appearing (and began being accepted for examination) at some point during the late 19th - early 20th century.
Even if you were able to go there, and disregarding the fact that you would only have a 20-year (at most) period of validity for your patent, you would most likely find that your idea would be rejected for lack of novelty and inventiveness: Already in ancient Rome you had something not unlike malls with small booths/establishments that sold stuff (digression: especially ready-made food to take home – many working-class people did not actually have kitchens in their homes, which were likely to be in an “insula”, a high-rise of up to 7 stories, divided in flats).
That would count (in my opinion) as “prior art” (if properly documented, and there are plenty of history books that would document that) against your idea.
Nice hypothetical, though 