I think that Plexiglass is also trademarked. But “acrylic” isn’t, as @Schnitte pointed out.
One that surprised me when I learned of it is “adrenaline”, which is still (somehow) legally protected. “Epinephrine”, which I would have guessed would be a trade name, is actually the generic name.
That one really surprised me too when I found out.
Actually Adrenalin is a trademarked adrenaline product of Parke-Davis. I don’t think the final-e version is a trademark.
Drat.
There was a Tiffany’s case resolved in 2017, where Costco argued that TIFFANY was a generic term for jewelry and labeled their shelves as such. But Costco lost that case for $19.35 million.
I did however find sort of the opposite, kudos to Steve Baird on DuetsBlog. In 1989 Best Buy’s lawyers successfully argued that the common law trademark BEST BUY, asserted by Best Buy Warehouse, was generic and thus invalid. Best Buy Warehouse v. Best Buy Co., Inc., 751 F. Supp. 824 (W.D. Mo. 1989). They convinced the Eight Circuit to affirm that ruling in 1991. Best Buy Warehouse v. Best Buy Co., Inc., 920 F.2d 536 (8th Cir. 1991). In the late 90s Best Buy really took off, and it was added to Standard & Poor’s 500 in 1999. In 2007 Best Buy applied to trademark BEST BUY, which was granted in 2008 with registration number 3,416,626.
~Max
Just a nitpick here with a purpose. I would recommend speaking and thinking about this process as “applying to REGISTER its putative trademark “Best Buy”.” That preciseness of terminology makes clear the distinction between a trademark and a registration, which is significant in trademark law. The government doesn’t give you a trademark. It REGISTERS your trademark after you demonstrate that you already own that trademark. (The situation is similar in copyright law.)
I had always thought “trademark” and “copyright” worked as verbs, too. But what you say makes sense.
~Max
Plexiglass isn’t, but Plexiglas is.
The original teleprompter was invented in 1949. The TelePompTer brand and trademark “Teleprompter” was sold to Westinghouse, and appears to have been declared dead in 2003.
It works in the sense that people use them that way, but that usage is associated with a huge amount of misunderstanding the law. Believe me, I spend every day explaining to people that the government doesn’t grant copyrights and trademarks and they’re baffled, because their whole lives they’ve heard about people going to the government to “copyright” and “trademark” things.
Yes, but that’s being a little nitpicky, isn’t it? Because while it’s true that copyright inheres in a work from the moment it’s set down, and you can use a trademark without registering it, for all practical purposes the only real way to obtain the full benefit of those IP rights is to register them with the government. So from a layman’s POV, it’s perfectly reasonable to consider the registration process as the government “granting” the trademark or copyright.
This is not true. Not “for all practical purposes.” For all practical purposes the vast majority of trademark and copyright owners are never going to end up fighting over their trademark and copyright rights in court.
With respect to copyrights, it is true that you need to register your claim in order to bring an infringement lawsuit, the vast majority of copyright owners are never going to need to bring a lawsuit. So enjoying the benefit of those IP rights is not granted by the government.
With trademarks, it’s even less so. While there are definite advantages to registering your trademark, you can have a perfectly enforceable trademark without ever registering it. Registration would make certain aspects of lawsuits easier, but the unregistered trademark rights would still be perfectly enforceable.
So I would say that “for most practical purposes, you may enjoy the benefit of those IP rights without registering.”
For a long time, any act of copying was called “Xeroxing”. I think that’s kind of gone away, though.
Thank you for this. I had no idea about a lot of these!
No, it is true. The argument you have made disregards the full text of my statement, specifically the part about obtaining the full benefit of the rights. You might as well say, “For all practical purposes, you don’t have to lock your front door at night.” This is true, since, in the vast majority of cases, no one will try to open your front door at night. But if you want the full benefit of that lock, you should use it.
So while it is true that most copyright holders and trademark owners will never have to go to court to enforce their rights, the entire purpose of the law is to give them the ability to do so and prevail. And although there are circumstances in which some redress can be obtained without registering, they are rare, and full protection can best be ensured by proper registration.
I’m sorry, but this is wrong. First of all, you are ignoring the basic fact that unregistered trademarks are fully protectable. You don’t ever have to register a trademark in order to defend it.
Second, you are also ignoring the basis of the law, that in registering either copyrights or trademarks, the government is not granting you a right. It is merely registering a right that you already own. This is a legally significant distinction.
If the registering agency denies you a registration, you may still go to court, in cases of both copyrights and trademarks. Your ability to defend your rights does not depend on the government’s granting the registration. In the case of copyrights, you must just show the court your letter of refusal. In the case of trademarks, you are never obligated to seek a registration in order to sue.
Okay, I will admit that 1) I was lumping trademark and copyright together for convenience, and 2) that there are differences between them WRT to enforcement, and 3) that even though I have owned trademarks, I am much more familiar with copyright.
But you quote my paragraph and say “this is wrong.” Which part? That the purpose of registration is to allow rights holders to prevail in court? That sometimes registration is not necessary? That full protection can be obtained by registering? ISTM that the most questionable claim in the paragraph is “they are rare.” I will concede, especially WRT trademark, that those circumstances may not be all that rare. However, I maintain that in the case of copyright they are much more rare because of the statutory damages registration provides.
I’m not ignoring it, I admitted it! Yes, it’s an important distinction for lawyers and the owners of various forms of IP. But the point of my original reply to you was that, for ordinary people who are neither lawyers nor IP owners, it is a distinction without a difference. They are wrong, but who cares?
I never disputed any of this. But are you asserting that there are circumstances in which it’s better not to register? Because my only claim in that regard was that the greatest protection is obtained by registering.
I think that’s a more common example of genericization these days.
Lots of foreign protected origin designations (AOC/DOCG/DOP, etc…) for various sorts of traditional products are routinely genericized by US producers.
For example, you can go buy US-made “Chablis” cooking wine by the gallon. However, Chablis is an actual AOC ( Appellation d’origine contrôlée) wine type/region in France. Same thing for Burgundy (in fact, Chablis is just north of the Burgundy wine region)
Cheeses are similar - we see roquefort, gorgonzola, camembert, brie, parmesan, asiago, and other cheeses in the US that are 100% made in the US, but marketed with those descriptions. Sometimes they’re even sneakier and label them as “imported”, when in fact they’re produced in some other nearby country like Canada or Argentina, and not in the European countries where they originated.
The upshot of this is that the protected origin producers tend to go for a more specific description - something like “Camembert de Normandie” so that they can differentiate their cheeses/wines/etc… from the mass-market version.
Something I always wondered about, even in business school, is whether genericization could be a double-edged sword. By that, I wonder if say… Thermos actually sells more vacuum flasks because theirs are prominently labeled “THERMOS”, while everyone else’s are labeled something goofy like “Igloo 32 oz vacuum flask”. Same thing with Chapstick, Stetson, Saran wrap, etc… Seems to me that if it’s something I’m not super familiar with, I’m more likely to buy the one named the generic term. It seems like almost the ultimate expression of “no press is bad press”.
If that is your only claim, then fine. It’s a given. But it’s also trivial with respect to what I originally said.
Primarily, that using “copyrighting” and “trademarking” fundamentally mischaracterizes the source of rights for these types of protections, and that avoiding this usage helps you understand how the rights actually work.
And I’ll give you one of the most common examples of this.
Say, X says something about owning rights (either copyright or trademark rights), and, then Y, having some reason to dispute this, goes to the copyright or trademark registry, and failing to find anything concludes “Aha! There’s nothing there! You don’t own it!”
This is a fundamental fallacy, and it results directly from this misconception about the origin of the rights. Not having registered a copyright or trademark claim does not mean you don’t own a copyright or trademark. It simply means you haven’t registered your claim of ownership.
In the case of copyright, if you want to take a matter to court, you just go ahead and register before suing. Now, that situation isn’t as good as registering earlier, and in some situations you might be denied the best remedies, but it also doesn’t mean that you don’t own the rights and you don’t benefit from them, because registration is not the source of your rights.
In the case of trademark, you don’t even have to do that. Again, it can be better (in many situations) if you register your trademark, but it’s not required, because registration is not the source of your rights.
And this misconception is reflected in a lot of news articles, for example, when discussing trademark matters, goes to the trademark registry and, finding no entry, says “There is no trademark on X.” This is flatly wrong. Because there may be any number of trademarks on X, just not registered.
Okay, I agree with almost everything you said above, but this paragraph:
In the case of copyright, if you want to take a matter to court, you just go ahead and register before suing. Now, that situation isn’t as good as registering earlier, and in some situations you might be denied the best remedies, but it also doesn’t mean that you don’t own the rights and you don’t benefit from them, because registration is not the source of your rights.
…while perhaps true to some degree, is, IMHO, very misleading.
First, anyone who was told “if you want to take a [copyright] matter to court, you just go ahead and register before suing” would be getting very bad advice. I assume Ascenray knows, but for the sake of others here I’ll point out that copyright law provides that if a work has not been properly registered, you can only recover for actual damages. In most cases, properly registered includes filing within a set period, e.g., 90 days of publication. For unpublished works, it must be before any infringement takes place. Obviously, if you’re taking someone to court, it’s because you believe they have already infringed. Registering at that point will limit your recovery to actual damages.
However, if you had properly registered, you could recover up to $130,000 in statutory damages per infringement (i.e., per illegal copy made), plus legal fees. This is often enough potential return to persuade an attorney to take the case. Unless you have somehow released a huge hit song without registering it, in the vast majority of cases actual damages will not be enough to get a lawyer to even answer your call.
If you happen to have enough cash to pay for a lawyer out of pocket, you can sue the guy who made unauthorized copies of your unpublished memoir, and the court may agree with you that he violated your copyright. But the infringer’s lawyer is going to point out that you tried peddling the book to 20 publishers who rejected it, and that therefore your actual damage is $0.00. If the court agrees with that argument, that’s what you’ll “win,” and you’ll still be on the hook to your lawyer for tens of thousands.
I take it this is what you meant when you wrote “Now, that situation isn’t as good as registering earlier, and in some situations you might be denied the best remedies.” This strikes me as a rather extreme understatement.
And that is why I wrote that for all practical purposes you must register to obtain the full benefit of your rights. A right that can only be enforced by extraordinary personal sacrifice is not very useful.
