There Is No Cat - Chilling Effects

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Friday, July 11, 2003

Chilling Effects

The fine law students of Harvard have posted an annotated copy of the cease-and-desist e-mail I received in regard to a trademark a few weeks ago at the Chilling Effects Clearinghouse. I found a number of items there of particular interest.

Trademark owner's rights:

Trademark owners do not acquire the exclusive ownership of words. They only obtain the right to use it for commercial purposes and to prevent competitors in the same line of goods or services from using a confusingly similar mark. (Emphasis added.)

Limits of trademark rights (fair use):

If the term is not used to label any particular goods or services at all, but is perhaps used in a literary fashion as part of a narrative, then this is a non-commercial use.

More limits:

If no income is solicited or earned by using someone else's mark, this use is not normally infringement. Trademark rights protect consumers from purchasing inferior goods because of false labeling. If no goods or services are being offered, or the goods would not be confused with those of the mark owner, or if the term is being used in a literary sense, but not to label or otherwise identify the origin of other goods or services, then the term is not being used commercially.

How much trademark law do I need to understand?

Your opponent should say that your mark is causing consumer confusion or is likely to cause consumer confusion. (If the C&D does not say this, then no trademark claim exists, and you can rest assured that your opponent is engaging in scare tactics or has hired a highly incompetent attorney).

That really is a wonderful service they provide. Thank you!

Posted at 9:39 PM

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"You see, wire telegraph is a kind of a very, very long cat. You pull his tail in New York and his head is meowing in Los Angeles. Do you understand this? And radio operates exactly the same way: you send signals here, they receive them there. The only difference is that there is no cat."

- Albert Einstein, explaining radio