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TESS said "DEAD", domain title now free for use in the same field? Trademark are not used for Years. Trademark

Discussion in 'Copyright, Trademark, Patent Law' started by Tobias Claren, Aug 4, 2015.

  1. Tobias Claren

    Tobias Claren Law Topic Starter New Member

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    Hello.

    Can a "DEAD" Trademark (earlier used as two word domain title) be used as domain name (same field, but other TLD), if the Trademark is also not in use for years (because of the common law).
    For example for 5 or 6. or... (a certain number of years?) years absolutely nothing.
    Except a primitive link page on the domain.
    Perhaps not even from the original owner of the originally domain.


    By the way.
    Is the lettering protected?
    I think, the pure brand name with a public domain font, does not have sufficient level of creativity, or?

    I know, the logo and graphics does not enjoy trademark protection, but copyright protection.

    OK, but what is with a similar logo and graphic.
    For example, if the (very) simple logo consists of simple elements of popular culture.
    Easy pictographic elements. For example, Game characters (cones or pins ...).

    Or the colors.
    For example, cold and hot are always blue and red, and good and bad is always green and red.


    Thanks.
     
  2. Michael Wechsler

    Michael Wechsler Administrator Staff Member

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    Common law is what it is - common law. It is far more difficult to protect and there isn't even state level trademark protection recorded. Without evidence of use in commerce and a likelihood of confusion being shown by the party asserting a trademark, the mark faces a significantly uphill battle to protect. I would think that the second comer would have a very good chance of making an attempt to prosecute an expensive failure.

    A public domain font is probably not sufficiently fanciful to enjoy protection. However, you are incorrect about the logo and graphics. Do you think that the Nike swoosh is protected by copyright or trademark? How about the Coca-Cola font? The McDonalds golden M logo? How about Apple's multicolored apple? These are all trademarks. As you put it, there needs to be a significant level of creativity and the level will drop in connection with how well the mark is accepted. The key here is whether use of the mark would cause a likelihood of confusion in the marketplace.

    Sometimes something simple associated with that which it would normally not be associated can suffice. For example, a simple boating logo to sell suitcases for a company called "Rowboat Luggage" might suffice. All of these instances present their own unique trademark questions and are legally determined on a case by case basis by the USPTO. Nobody I know prefers to fight things out in court for a common law trademark, which also would only provide protection in a limited area.
     
  3. Tobias Claren

    Tobias Claren Law Topic Starter New Member

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    Yes, this examples in the second paragraph are all Trademarks. But also with copyright (or not?!).
    Tha'ts what I meant. In the event that the graphic trademark is "DEAD", the graphics are protected by copyright.
    Like any private photo, drawing, text etc.. Or not?
    In my example, all is "DEAD". The domain name, lettering and graphic.
    I think, I could register a domain with the Title. Perhaps I could use the Title with this public domain font.
    But the "DEAD" Logo is furthermore protected by copyright.


    I'll try to understand the first and last paragraph.
    English is not my mother language. I think it shows.
     
  4. Michael Wechsler

    Michael Wechsler Administrator Staff Member

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    Your English language skills are very good for someone who does not speak natively. :) Kudos to you for being able to communicate well and with reasonably good grammar too.

    Yes - copyright and trademark rights can co-exist and are mutually exclusive (can be together or separated without an issue.) A trademark may be dead but copyright may be alive and well. And the same goes in reverse. A brand such as Disney may be still protected by trademark. But Disney cartoons and comic books of Mickey Mouse and Minnie Mouse may expire under copyright law - but they may still have trademark protection applied to them. So reprinting an item that is no longer under copyright protection might be fine. But you would be prevented from trying to use it for commercial purposes in a way that would violate trademark law. And the same goes in reverse. If hypothetically Marvell ever went out of business and its trademark died, it would still have copyright rights over the use of the images of superheroes like Batman, Superman and the X-Men. In fact, there are many instances where corporations try to use one or the other to protect their rights when one of them expires.
     
  5. Tobias Claren

    Tobias Claren Law Topic Starter New Member

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    My English, and support from Google Translate (words, half/full sentences...).
    For Google Translate, I make simple sentences as base.
    But reading and understanding of "everyday English" is more difficult.
    Also Google Translate has problems. I can not really understand the whole result.


    Batman and Superman are DC Comics.
     

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