Trademark filings, laws and disputes are handled by the same office that handles patents. Trademarks, as many people believe, give a company or person the exclusive rights to a word, or phrase. This week, a woman filed to trademark "I can't breathe". The phrase has been used heavily in the protests against police brutality, and refer to the words of an unarmed man who was killed by police. It would seem that the woman believes by trademarking the phrase she would own the right to use it in all respects, but it isn't that simple.
Trademarks aren't really as black and white as many people seem to think. A company that trademarks a word or phrase doesn't necessarily own the phrase or word, rather they own the right to exclusively use the word or phrase in their particular market. So, in theory there could be a "Take 5!" production company that has trademarked the phrase in New York, and a "Take Five!" coffee house in Seattle without trademark infringement occurring.
Trademark litigation often includes the examination of what is now known as the DuPont Factors. The DuPont Factors include:
- Similarity in appearances (colors, logos etc.)
- The type of goods being sold
- Established channels of trade
- Where and to whom items are being sold
In short, trademark court proceedings attempt to figure out whether or not the business with the trademark could be potentially hurt, in terms of sales, by another business using a similar phrase or trademark. That is, whether or not consumers could potentially be "confused" by the trademark, and thus by products from one outfitter thinking they are buying products or services from the trademarked outfitter.
For example, earlier this year, "Dumb Starbucks" opened in Los Angeles as part of a Comedy Central stunt. The coffee house, which was real, was completely re-branded, utilizing Starbucks' colors and a similar logo. The menus looked like Starbucks menus, simply with the word "Dumb" placed in front. The owner argued they could use the logo and other trademarked material because it was obviously a parody of the famous coffee chain. Starbucks responded, but most trademark infringement issues are settled informally through the company.
Experts argue, however, that a court would have found such an act infringement, as the word "Dumb" does not adequately explain that it is a parody of the existing chain, and the store used most of Starbucks' trademarked material. In addition, the real Starbucks has locations in the same area as "Dumb Starbucks", and sell the same products and to the same demographic.