| 词汇 | Trademark Or Mark2 |
| 释义 | `1`Trademark Or Mark2 `2` "Legal Lexicon": Generic terms are invalid. See Roux Laboratories, Inc. v. Clairol, Inc., 427 F.2d 823, 829 (C.C.P.A. 1970). A ground for reconsideration is evidence that the terms are suggestive, or perhaps descriptive, but not generic. A descriptive term is not necessarily invalid, and a suggestive term is automatically valid. See Bristol-Myers Squibb Co. v. McNeilP.P.C., Inc., 973 F.2d 1033, 1040 (2d Cir. 1992). Genericness of Trade Name "The terms `generic' and`trademark' are mutually exclusive." 1 J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition S 12.01[1], at 12-3 (3rd ed., Release #3, 1994). A term is a generic name, not a trade name, if it "merely identifies the genus of which the particular [business] is a species." Liquid Controls Corp. v. Liquid Control Corp., 802 F.2d 934, 936 (7th Cir. 1986). A competitors' usage of a term is evidence of whether it is generic. 1 McCarthy S 12.02[7][b][i], at 12-23 to -24. evidence that plaintiff uses a term in a generic manner is strong evidence that the term is generic. id. [b](2), at 12-24. One term may have different meanings to different groups of listeners. See Surgicenters of Am., 601 F.2d at 1019; Abercrombie & Fitch Co., 537 F.2d at 9. the way to determine whether a term is generic is to determine whether consumers of products & services think it is generic. Annheuser-Busch, Inc. v. Stroh Brewery Co., 750 F.2d 631, 638 (8th Cir. 1984) ("What do the buyers understand by the word for whose use the parties are contending."). Descriptiveness of Trademark A trademark that is descriptive and lacks secondary meaning is invalid. Bada Co. v. Montgomery Ward & Co., 426 F.2d 8, 11 (9th Cir. 1970). A trademark is descriptive if it describes the product to which it refers or its purpose. Bristol-Meyers Squibb Co. v. McNeil-P.P.C. Inc., 973 F.2d 1033, 1040 (2d Cir. 1992). "Although the distinction between descriptive and suggestive marks may be inarticulable, several criteria offer guidance. The primary criterion is the imaginativeness involved in the suggestion, that is, how immediate and direct is the thought process from the mark to the particular product." AMF Inc., 599 F.2d at 349 (citations and quotations omitted). "If the mental leap between the word and the product's attribute is not almost instantaneous, this strongly indicates suggestiveness, not direct descriptiveness." 1 McCarthy S 11.21[1], at 11-108 to -109 (citing Investacorp, Inc. v. Arabian Inv. Banking Corp., 931 F.2d 1519 (11th Cir. 1991)). Elizabeth Taylor Cosmetics Co. v. Annick Goutal, 673 F. Supp. 1238 (S.D.N.Y. 1987) illustrates the difference between suggestiveness and descriptiveness. Both parties manufactured perfumes called "Passion." The court ruled that the term was suggestive, not descriptive. Id. at 1243-44. The most obvious way to describe a perfume is by its scent: "Musky," for instance. It takes a mental leap to imagine that the scent evokes a particular emotion, like "Passion." Recovery, Inc. had applied to register the term "Recovery" as a service mark for its training, conferences, and publications. The company's products and services were all designed to teach lay leaders to provide aftercare self-help to people who had completed psychiatric counseling. Id. at 831. The Trademark Trial and Appeal Board, finding that "Recovery" was suggestive in context, reversed a finding that the term was descriptive and a registration denial. In re Recovery, Inc., 196 U.S.P.Q. 830 at 832(T.T.A.B. 1977). The Trademark Trial and Appeal Board admitted that this case illustrated how difficult it can be to distinguish between descriptiveness and suggestiveness. Id. However, Recovery, Inc.'s use of the term was one step removed--"Recovery" products and services were services to teach informal counselors to teach ex-patients to help themselves. This extra step constitutes the difference between descriptiveness and suggestiveness Go to Trademark Or Mark3 |
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