As you may recall from last week’s post, a trademark protects “things” that represent or are associated with a created work. These “things” can be slogans, phrases, graphics, or artwork that are unique to the work and help the consumer relate to the work. However, trademark law also protects the design of certain items from being copied. In order for this protection to occur, however, the item must have a level of “distinctiveness.”
In other words, in order for a work to be protected by a trademark, it must be something that is not generic or too common. Sound familiar? Recall the originality requirement in our copyright discussion from our May 27, 2015 post here. The distinctiveness requirement in trademark law is then very similar to the originality requirement in copyright law. With these concepts in mind, we can say that generally the law favors what’s new, original, different, or distinct while it disfavors what’s generic, common, usual, or similar.
It’s All Too Common
In the case of Remington Products, Inc. v. N. Am. Philips Corp., 892 F.2d 1576, the US Court of Appeals declined to uphold a trademark decision protecting the phrase “travel care” as used to describe items like electric travel irons. Philips Corp., the maker of the Norelco shaver, obtained a trademark to the phrase, “travel care,” while their competitor, Remington Products sought to cancel this registration as they also sold travel care products. The court agreed with Remington and reversed.
In the decision, the court ruled that the phrase, “travel care,” was generic and not entitled to trademark registration because it had in effect gone into the public domain. In essence, “travel care” was already known to refer to a category of goods in the marketplace representing items used for travel. Furthermore, the court also found that no “secondary meaning” had been established by the company for the phrase, “travel care” which would have entitled it to trademark protection. As it stood, the phrase was too common, and already widely used.
So…Give It A Twist
As has been the theme throughout these posts, originality wins. This is why a word like “soda” cannot be trademarked, while “Pepsi,” “Coca-Cola,” “Mountain Dew,” or “Sprite” are all protected. Think about naming or branding when seeking a trademark. After all, that’s what a trademark is–a type of branding on an otherwise common item. If we are discussing the design of an item, which we will go into more depth in the next post, common designs or shapes will likely not garner protection, while a design or style that is unique to its creator will.
Question for Discussion: Why do you think common phrases like, “travel care” are not entitled to trademark protection?
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