OF A TRADEMARK INFRINGEMENT CASE AND, IN THE PROCESS, OF TRADEMARK
Trademark Law Overview
Trademark law can be baffling to the uninitiated, who tend to equate
domain names and trademarks. Unlike domain names, there is no central
trademark registry where you can apply for a trademark and get an immediate
answer as to its availability for your use, based solely upon whether
or not the trademark you seek is already "taken".
A domain name is a sequence of alphanumeric characters (for example, johns-widgets.com).
If the domain name you seek (an exact sequence of alphanumeric characters)
is not already "taken", you get a registration for the name on the spot.
A trademark or service mark is also a sequence of alphanumeric characters
(leaving aside for the moment the question of design trademarks), but
there can be multiple trademarks consisting of exactly the same characters.
When you file with the United States Patent and Trademark Office ("USPTO"),
you get no prompt commitment, one way or the other, and the USPTO will
not permit you or prevent you from using the trademark or service mark.
Instead, they will simply determine whether or not they will register
it. You'll wait a year or more for a registration, if you get one at all,
and any such registration does not give you exclusivity with respect to
that particular combination of alphanumeric characters. In point of fact,
you don't even get a guarantee of exclusivity for that particular combination
of alphanumeric characters with respect to the specific goods or services
covered by the registration unless you enforce your rights - the USPTO
won't enforce those rights for you.
If a "mark" (the term refers to both trademarks and service marks
and will be used often to simplify the language) is associated with
goods it is a "trademark", and if it is associated with services, it
is a "service mark." Marks must be associated with either goods
or services, but in many cases the line between the two is a blurry
one. Next: the origin of trademarks.