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Trademark Act §1127 Definitions

• The purpose and intent of the Trademark Act is to regulate commerce (with "commerce" being all commerce that Congress may lawfully regulate) by:
  • making actionable deceptive and misleading use of marks
  • protecting registered marks from interference by state or territorial legislation
  • preventing unfair competition
  • preventing fraud and deception created by use of reproductions, copies, counterfeits or colorable imitations of registered marks
  • providing rights and remedies created by treaties and conventions

• Abandonment of a mark occurs when its use is discontinued and there is no intention to resume it or a mark becomes, through omissive or commissive conduct of its owner, generic or otherwise ceases to be identifying.
  • Non-use for three years is prima facie evidence of abandonment.
  • Use of a mark must be in the ordinary course of business and not simply to preserve rights in it.
  • Purchaser motivation is not a test for determining abandonment.

• Applicants and registrants include legal representatives, predecessors, successors and assigns.

• Certification Mark means any word, name, symbol or device, including any of their combinations, used in commerce with permission by a party other than its owner to certify origin, material, quality, accuracy, method of manufacture or other characteristics of goods or services.

• Collective mark means a trademark or service mark used in commerce by a cooperative, association or other collective organization, including for the purpose of indicating membership in a union or other organization.

• Counterfeit marks are inauthentic marks which are identical to or nearly indistinguishable from registered marks.

• Dilution means a lessening in the ability of a famous mark to identify and distinguish goods and services.

• Persons, as used in the Trademark Act, includes natural persons, entities which can sue or be sued, states and state agents or employees acting in their official capacities.

• Related company means any person whose use of a mark is controlled with regard to the nature or quality of goods and/or services in relation to which it is used.

• Trademark means any word, symbol or device, or any of their combinations, used or intended to be used in commerce by a person to identify the source of goods.
  • Service mark is defined similarly to trademark, except that the source of services, rather than goods, is identified.

• Use in commerce means bona fide use of a mark in relation to goods and/or services in the ordinary course of business.
  • For goods this means placement on them, their containers, displays, tags, labels or associated documents.
  • For services this means use or display in their sale or advertising and their being rendered in commerce or, if the person rendering the services is engaged in commerce, they are rendered in more than one state or the United States and a foreign country.

Nothing in this site is intended in any way to constitute legal advice or to create an attorney-client relationship. The author, Jay M. Tyndall, shall not be liable for any damages of any type, whether actual or consequential, which may arise from the use or reliance of any reader on the content of this site or any site to which it links. No guarantee or assurance is made that any information transmitted to or via any unsecure portion of this site will remain confidential.