Trademark Protection of Product Characteristics: A Predictive Model

Abstract

Marketing professionals, in their quests to find new ways to distinguish products, now seek trademark protection for a wide array of product attributes, such as colors, odors, sounds, and shapes. Public policymakers have been willing to expand trademark protection to these realms, but unfortunately without formulating a coherent philosophical approach to guide their decisions. The author provides a conceptual model that enables marketers to predict how the Patent and Trademark Office and the courts will resolve specific questions regarding the applicability of trademark protection for product characteristics.

Empirical Substantiation of Sport Trademark Dilution: Quasi-Experimental Examination of Dilutive Effects

“…The legal standard of likelihood of confusion corresponds to the foundational doctrine of the Lanham Act. Although the recent enactment of the dilution statute has shifted the scope of federal trademark law toward more intellectual property-type rights (Long, 2006), the Lanham Act initially intended to provide manufacturers with incentives to produce and sell high quality goods (Burgunder, 1997). The Lanham Act was arguably enacted to protect general consumers rather than owners (Kahn, 2004).…”

Legal Strategies for Protecting Brands from Genericide: Recent Trends in Evidence Weighted in Court Cases

“…Because of the substantial value that can be derived from brand names and trademarks, considerable research on protecting trademarks has evolved in recent years (e.g., Burgunder 1997; Howard, Kerin, and Gengler 2000; Kopp and Suter 2000; Morrin and Jacoby 2000; Simonson 1994). The research has focused on several areas, including trademark dilution based on unauthorized use of a mark (Jacoby and Morrin 1998; Simonson 1994), trademark infringement (Burgunder 1997; Howard, Kerin, and Gengler 2000), and the application of trademark laws to the Internet (Kopp and Suter 2000).…”