A trademark is any word, design, slogan, symbol, or sound that serves to identify a specific product or brand. Four classic examples of trademarks are Coca-Cola, Apple, Just Do It
(for Nike), and Xerox
. Say any one of these trademarks out loud and most people will immediately recognize the mark and instantly recall their perception of the company and its products. One of the main goals of advertising is to build awareness and preference for a particular brand. Over the course of time, a company's ability to deliver quality goods and services also greatly influences brand perception. For these and other reasons, a company's trademarks are some of its most valuable assets.
It is well documented that the name of a successful product or business contributes greatly to its real worth. One term often used to describe this is brand equity. Wikipedia defines brand equity as "the marketing effects or outcomes that accrue to a product with its brand name compared with those that would accrue if the same product did not have the brand name." Stated another way, brand equity determines how much more customers are willing to pay for one company's products than identical products from a "no-name" manufacturer. One technique TechWise uses to measure brand equity is conjoint analysis. Companies spend significant resources to build their brand equity and trademarks. Sometimes, resources must be spent to defend trademarks from being used by competitors.
For example, assume a start-up beverage manufacturer called Smith's Drinks has a carbonated soft drink it wishes to sell under the name Coka-Cola. Many people would try the drink, thinking that it is a new product from Coca-Cola. Smith's Drinks would be infringing on a trademark of The Coca-Cola Company. By selecting a name similar to Coca-Cola, Smith's Drinks is stealing potential revenues from Coca-Cola and may also be harming Coca-Cola if customers dislike Smith's Drinks new product. In this obvious scenario, Coca-Cola could sue Smith's Drinks for trademark infringement.
Trademark law is designed to protect consumers by preventing the public from being misled as to the origin or quality of a product or service. The federal statutes regarding trademarks can be found in The Lanham (Trademark) Act (title 15, chapter 22 of the United States Code). Those wishing to learn more about trademarks are encouraged to visit the United States Patent and Trademark Office. Trademark infringement occurs when one company uses a trademark that is so similar (or identical) to the registered mark of the owner that it is likely to deceive or to cause confusion on the part of the average purchaser.
When a company thinks another firm is infringing on its trademark, it can file an infringement lawsuit and ask the court to grant a preliminary injunction to prevent the infringer from using the trademark pending the outcome of the lawsuit. If granted, the preliminary injunction effectively forces the infringer to immediately change the name of their product or service. Legal fees from trademark infringement lawsuits can easily exceed $100,000. Thanks to these costs, few cases go to trial once a preliminary injunction is granted. To get an injunction, the plantiff needs to convince the courts that 1) its business will suffer irreparable harm unless emergency relief is granted and 2) the case is strong enough that the plantiff will likely win at trial. The first point is easy to prove if the defendant is using the mark in business. To prove the second point, the plantiff needs to convince the courts that consumers are likely to be confused between products identified with the respective parties' marks. This is where TechWise can help a plantiff defend its mark. TechWise can design and implement a scientific survey of potential customers to determine whether or not the infringer's mark is causing confusion. Armed with this data, plantiffs have a much better chance of winning a temporary injunction. As owners of four trademarks from the United States Patent and Trade Office, we have firsthand experience in the process of obtaining and defending trademarks. This experience, combined with our market research expertise, enables us to determine whether or not customers are confused by the two marks. In the rare event that the case goes to trial, our president has experience as an expert witness, having served as an expert witness in front of two jury trials in Superior Court.
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