Posted by Rick Denney on October 04, 2002 at 10:21:05:
In Reply to: of copywrites and registered TMs posted by wondering on October 04, 2002 at 03:23:38:
With all due respect, this time, Dale, it's time for you to speak plainly and say what you mean.
I'll guess: You are concerned that Joe used the term "Tuba Fest" for his upcoming recital which is a registered trademark used by Tony Clements? It's probably just a misunderstanding.
There are a limited number of holiday and special event terms that can be coupled with the word "tuba", so mistakes are likely.
But there is a requirement in trademark law that does not exist in copyright law: A trademark must have been in regular, commercial use in the region for which the trademark holder seeks protection. It also helps that the person borrowing the term is, in fact, borrowing the term and not just using it by accident.
For example: There was a barber named Ceasar, who named his barbershop Ceasar's Palace. Now, if he had his barbershop established before the famous Las Vegas hotel could establish a trademark in that region, then they would be required to make a deal with him and "persuade" him not to use the name, if they wanted. He could not do the same to them, because he had not established his trademark in Las Vegas. Another example (and a real one): the restaurant Chuy's, in Austin, opened a new location in Arlington, Texas, which is adjacent to Fort Worth. But there was already a restaurant in Fort Worth called "Chuy's". The Austin-based chain was much bigger and better funded, but in the Fort Worth area, they had to call themselves "Chuy's of Austin" to avoid infringement. Note that the Fort Worth restaurant had no claim on Chuy's in their locations outside of the Fort Worth vicinity, because they had not established their trademark in common usage outside that region.
In fact, before you can even register a trademark, you must demonstrate that it is already in common usage in the areas where you seek to register it. That's why some trademarks have the "TM" instead of the circled "R". That "TM" is serving notice to the public that the owner seeks to establish it as a trademark, and if they have a problem with that, they had better say so.
So, trademarks are a much grayer area and subject to a lot of interpretations, where copyrights are much more clear.
Other purveyors of tuba-related trademarks have been extremely aggressive in protecting those trademarks, even to the extent of issuing threats based on what I would consider to be an incorrect understanding of copyrights and trademarks. I know this to be a fact, having personally experienced it. There's no need to follow that example, it seems to me.
Rick "not a lawyer but who has studied the subject for business" Denney