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A trademark is a source identifier that is intended to prevent consumer confusion as to the source of a particular good or service. An average consumer will se
by iplaw 10y ago
A trademark is a source identifier that is intended to prevent consumer confusion as to the source of a particular good or service. An average consumer will see the mark "McDonalds" on a fast food restaurant while traveling and assume that it is connected with the "McDonalds" in their hometown, that they can expect the same menu and quality of food, etc. It prevents the confusion that would be caused by 10 different "McDonalds", each varying in food and/or service quality.
In my view, a hashtag DOES NOT identify a source. It merely identifies a topic. The @EdmondActive is the source identifier. Companies AND the USPTO are not well informed on topics such as this.
Think about color for a moment. If you see a brown cargo van, do you immediately think of UPS? It is likely. When you see magenta in the realm of wireless carriers, do you immediately assume it is in connection with T-Mobile? In lesser known niche markets, the color of a product is even more identifiable and, thus, protectable.
If I were to launch a parcel delivery company, use brown cargo trucks, and clothe my drivers in brown uniforms, consumers would likely confuse my delivery company for UPS, and I would be freeriding on the goodwill that they have created with consumers.
Hence, colors are rightfully protected. Hashtags should not be.
- geon 10y agoAdditionally, I believe trademarks are only valid within the same type of business. The UPS brown would not be protected outside delivery services.
- lloyddobbler 10y agoYep. The trademark litmus test is whether or not there is a "likelihood of confusion" with the business that owns/claims said trademark. So if I was to create and sell a t-shirt with, say, a photo of Mickey Mouse on it, Disney could sue me and claim I was infringing upon their trademark (the mouse), and causing customers to think that my shirts were from Disney. So it doesn't have to be within the same type of business - it just has to be likely to cause confusion. (In the case of UPS brown, it would make sense that it can't be used by another delivery service on their trucks, given how prominent it is to the UPS brand. But for a grocery store, for instance, that color wouldn't cause confusion.)