Re: Fair use question.

Subject: Re: Re: Fair use question.

Comments:
: : If a term is in generic usage to describe a particular type of thing, and somebody registers that term as a trademark, can that trademark owner keep people from using that term in a generic manner? This term has been in generic usage for at least five years before being registered. : : Thanks, : : Jess : Depending on the type of goods or service, a trademark can run the gamut from GENERIC, (merely descriptive), suggestive, fanciful, arbitrary or coined. : While Steve Jobs' company owns a famous trademark APPLE for computers, it cannot stop farmers from selling Fujis, Granny Smiths and MacIntoshes by use of such generic designation. : Here are a few more examples: WAX ON/WAX OFF : for a car wax might be viewed as suggestive if not merely descriptive. : Even if you were lucky enough to register the mark, it would be difficult to enforce against potential competitors who might use the phrase in their instructions or promotional materials. : NAIL ONS might be viewed as suggestive for press-on nails, but if used by one paticular trader for more than 5 years, and/or extensively promoted it could acquire some distinctiveness or public recognition which might lead to trademark protection. : Consider: IBM trademark for International Business Machines. My Toshiba laptop manufactured in Taiwan has traveled me with on business to Korea, Hong Kong and back to the US. I suppose I might now fairly describe it as an International Business Machine despite its original manufacturer. : Although, BMW has acquired a distinctive trademark: THE ULTIMATE DRIVING MACHINE, many would argue that the description could also be fairly used to describe just about any Ferrari, a Shelby Cobra or even the new Hummer II. : For more about descriptive and generic names, and links to recent decisions involving trademarks that were deemed generic for use as domain names, check out www.genericnamesonline.com.

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