Doctrine of Fair Use or Rejected under the Trademark Concept in the Intellectual Property Law - Assignment Example

The efforts by Dial-A-Mattresses to register the mark MATTRESS.COM can either be rejected or accepted by the Trademark Trial and Appeal Board. It can be accepted under the doctrine of fair use or rejected under the trademark concept in intellectual property law. To conclude the case more appropriately the two concepts will be discussed in detail (Kinsella 12). Some of the commonly used trademarks include:

• ™ for unregistered trademarks mainly to promote new products
• ℠ for unregistered service marks to promote services
• ® for a registered trademark

A trademark is a kind of intellectual property and a characteristic name, word, phrase, emblem, sign, design, image, or a combination of any of these. A trademark is a type of intellectual property, and typically a.[2] There is also an assortment of non-conventional trademarks consisting of marks that can not be classified into these standard categories. The holder of a registered trademark may file legal charges for trademark infringement to protect the unpermitted use of the trademark. Registration is however not compulsory. The owner of a universal law trademark may also file a charge, though an unregistered mark may only be safeguarded within the geographical area within the area within which it has been in use. This can however be enlarged to include a wide geographical area. When a trade is applied to given services as opposed to commodities, it may be referred to as a service mark. Other Internet retailers using the trademark MATTRESS.COM can sue for infringement of the trademark (Kinsella 15).

• Fundamental concepts
• The basic importance of a trademark is to identify the business source or origin of commodities and services. In short trademarks are identifiers of specific businesses as the source of commodities or services. The utilization of a trademark in this manner is referred to as trademark use. Particular exclusive rights attached to a registered mark which composed of means of using or trademark violation while trademark rights may be imposed using universal the law tort of passing off. It is worth noting that trademark rights often result from the application or to preserve restricted rights over that sign regarding particular commodities or services, where no other trademark objections exist. Various commodities and services have been categorized by the International classificaClassificationities and services into a total of 45 trademark classes. Since most of the companies or Internet retailers using the trademark MATTRESS.COM may not be registered and will thus pursue trademark infringement through the universal law of tort (Kinsella 15).
  • Registration

The law regards a trademark as a kind of property. Proprietary rights regarding a trademark are established via real utilization in the marketplace or registration of the trademark with the relevant agencies in the specific jurisdiction. In certain jurisdictions, trademark rights can be created through the two methods. In the U.S. the only means of justifying a federally registered trademark is to first apply for the trademark in entrepreneurial activities. If trademark holders do not have registrations for their trademarks in these authorities, the degree to which they will be able to impose their rights through trademark violation cases will be limited. In cases of disagreements, this variation of rights is normally known as first to file compared to first to use. The Trademark Trial and Appeal Board should thus consider all these facts before accepting to register the company’s trade marktrademarker firms can sue for infringement of trademark rights (Vaidhyanathan 220).