Re: Re: Re: Re: Re: FUNCTION & GENERIC WORDS CAN B TRADE MARK?
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Posted by M. Arthur Auslander on June 22, 1999 at 04:25:51:
In Reply to: Re: Re: Re: Re: FUNCTION & GENERIC WORDS CAN B TRADE MARK? posted by Ash on June 21, 1999 at 19:46:02:
: DATA BANK as ILLUMINATOR are the fuctions of the watch or calculator, evidently, plus are generic terms, plus are registered patens as function.
: plus on their catalog comes indicated as function too.And used by many other makers too.
: It is registered yes, question does it get protection for exclusive right in spite being GENERIC and FUNCTION?
The descriptive words are used in a context as a whole part of a mark or as used do not describe the article to which they are attached. Even if registered the mark may be challengable. If in fact the words are generic for the article then they pass into the public domain and the trademark is invalid. Asperin was once a trade mark but passed into the public domain since it was the only word to describe the product. Johnson and Johnson once threated a bandage manufacturer client for using "Aid" as part of tradmark for a bandage. The matter was settled after a question of genericness was raised. If you now look at a Johnson and Johnson "Band Aid" you will notice that the also use the word "Brand" or "Trade Mark" with the mark to make it clear that it is a trademark not a generic designation. That is still a close one that to my knowledge has not gone to court. The outcome may still be uncertain. "Band Aid" is already in the dictionary. The law is never just black and white but there are limits. There is one "Data Bank" registration which is suggestive as distinguished from descriptive that may even become incontestible. "Date Bank" does not describe a watch.
M. Arthur Auslander
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Auslander & Thomas-Intellectual Property Law Since 1909
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212-594-6900, fax 212-244-0028, aus@auslander.com
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