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Originally posted by Rain Man
...he does have a valid point.
I will first say that I truly don't know what the ultimate outcome will be from this case, but since no copyright or trademark infringement has occured, it's going to be rather difficult for the NPHC to prove such in this case.
Unless the respective NPHC years and colors are registered trademarks of the orgs, it's going to be difficult to prove any damages has occured.
Example: The Ford Motor Company has Motorcraft as a registered trademark of their company. If another company uses similar car parts that Ford uses and puts MotorCARE or Motor CAR on their products, no trademark infringement has occured, and thus Ford cannot sue and reasonably expect to win.
Now, if Converse uses the NPHC orgs names, coats of arms, or other registered trademarks on their shoes, that's another story altogether. But I see no indication that such is being used.
I reserve further comment on this case pending upcoming developments.
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Hello Rain Man,
Actually, there is two ways that you can get protection under law in the trade mark/trade dress arena. First, you can *register* a mark or dress; second, you can be deemed to have what courts common law protection for a mark or dress (no registration required). To get common law protection, all you have to do is to prove that you have invested enough time, effort and maybe cash toward the goal of ensuring that when a consumer sees your mark or dress with the product or service that you are providing, that the consumer recognizes the connection. Again, the test is whether there is a likelihood of consumer confusion when the other person uses the same or similar mark/dress for the same or similar product.
Again, you don't have to register a mark or dress in order for the law to give you rights in it.
The main distinction in treatment if you do not register your mark/dress is that the law will only provide you with protection for the geographical area that your product and mark/dress covered. This is b/c the law does not expect for person A living in Cali to be familiar with your mark and accompanying product/service if you are only using it in some corner of say, Rhode Island so the law will refuse to find that person in California has infringed when the person could not reasonably even know that you were using the mark/dress for the your product/service. But if you *registered* the mark, the mark would be published online at the USPTO site and published in the trademark registry and everyone in the U.S. would at least be on constructive notice and therefore, the courts would be willing to find infringement, even if the alleged infringer is not in a location where the owner of the mark/dress is doing business.
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Further, you mentioned that if Ford trademarked "Motorcraft" for use with parts x and another car manufacturer uses "Motor Car" for similar parts x, no trademark infringement has occurred.
I guess that I agree with your example in this case. However, it's not the case (and I'm not sure if you were saying that it is - I couldn't tell) that just b/c a spelling is different or the words are different but they mean the same or sound the same, that a person will be able to avoid a court finding infringement. It's not that easy - remember, the test is consumer confusion, not whether actual word/dress is exactly the same. The courts use a number of factors that will allow them to find trademark/trade dress infringement even if there is a change in spelling or slight change in wording, but a consumer would still be confused into thinking that its the same.
For example, the court uses factors such as sound, sight, spelling, meaning of the wording to also consider whether there has been infringement. These are just some of the factors that go into evaluating whether infringement has occurred.
SC