Claimed marks fall into three categories of distinctiveness: INHERENTLY DISTINCTIVE MARKS A mark is inherently distinctive if it "inherently signals to the potential buyer that it designates the source of the product rather than some other type of information." Because the mark is inherently distinctive, it is protectable without showing that it has acquired distinctiveness in the public mind. categories: Fanciful A fanciful mark is one devised to serve as a mark that does not name or describe the product Ex. Kodak for film (made up name) Arbitrary an arbitrary mark is an existing symbol chosen to serve as a mark that has no logical relation to the goodsA fanciful mark is one devised to serve as a mark that does not name or describe the product Ex. Apple for computers Suggestive Suggestive marks suggest, but do not describe, the nature or characteristics of the product Ex. Base Camp for refrigerators and Noah for zoological garden Labrador Software v. Lycos: A picture of a Labrador retriever was held descriptive for Internet search engine services. Ct. said the image of the dog does not literally describe using a database to help users find relevant web pages, but the retriever is a common industry metaphor for such information retrieval services. MARKS THAT ARE CAPABLE OF ACQUIRED DISTINCTIVENESS These marks can obtain protection only after they acquire "secondary meaning" A mark acquires secondary meaning when, "in the minds of the public, the primary significance of the mark is to identify the source of the product rather than the product itself." Ex. Coca-Cola (term is descriptive because it describes a cola drink derived from the coca plant. But name has become so well known as a mark that the primary significance of Coca-Cola is not as an identifier of source--to distinguish Coca-Cola beverages from others such as Pepsi) Merely Descriptive identifies a characteristic or quality of the or services
Claimed marks fall into three categories of distinctiveness: INHERENTLY DISTINCTIVE MARKS A mark is inherently distinctive if it "inherently signals to the potential buyer that it designates the source of the product rather than some other type of information." Because the mark is inherently distinctive, it is protectable without showing that it has acquired distinctiveness in the public mind. categories: Fanciful A fanciful mark is one devised to serve as a mark that does not name or describe the product Ex. Kodak for film (made up name) Arbitrary an arbitrary mark is an existing symbol chosen to serve as a mark that has no logical relation to the goodsA fanciful mark is one devised to serve as a mark that does not name or describe the product Ex. Apple for computers Suggestive Suggestive marks suggest, but do not describe, the nature or characteristics of the product Ex. Base Camp for refrigerators and Noah for zoological garden Labrador Software v. Lycos: A picture of a Labrador retriever was held descriptive for Internet search engine services. Ct. said the image of the dog does not literally describe using a database to help users find relevant web pages, but the retriever is a common industry metaphor for such information retrieval services. MARKS THAT ARE CAPABLE OF ACQUIRED DISTINCTIVENESS These marks can obtain protection only after they acquire "secondary meaning" A mark acquires secondary meaning when, "in the minds of the public, the primary significance of the mark is to identify the source of the product rather than the product itself." Ex. Coca-Cola (term is descriptive because it describes a cola drink derived from the coca plant. But name has become so well known as a mark that the primary significance of Coca-Cola is not as an identifier of source--to distinguish Coca-Cola beverages from others such as Pepsi) Merely Descriptive identifies a characteristic or quality of the or services
Intellectual_Property_Wypadki_2012.docx