Trademark is a sign used to distinguish services and goods of one company or business from those offered by another company. They are essential in ensuring customers that the products are of the top required cost; people have built trust with the trademarks due to their consistency in producing quality products. Companies always use the trademark from other enterprises to reach the targeted market as long there is an agreement between the two enterprises and the owner of the trademarks has the proper knowledge about the goods or services to use the trademark as they have to protect their reputation (Nasirov, 2020). One of the most used trademarks is Toyota, which many automobile companies sell in the targeted market. However, they will still use their brand name; they will trade on the Toyota logo or trademark. Other top trademarks are Amazon, Apple, Microsoft, Google, Visa, Alibaba, Tencent, and Facebook, which can almost sell in any place worldwide. The importance of these trademarks calls for their protection through infringement, and dilution power was given to the owner to prevent other enterprises of the organization from using it. Trademark protection is critical to a company′s reputation and standing. This can result in significant financial loss for both the trademark holder and the company that inadvertently uses an infringing trademark and divert time and effort away from growing and maintaining a business. “Likelihood to confuse,” commercial promotion, blurring, tarnishment, and free riding have been the cornerstones in the Lanham Act used to solve the cases of trademark infringement and dilution.
The Lanham Act, famously known as the trademark law or Act, was crafted in 1946 as a federal law with the mandate to deal with unfair business practices, service marks, and trademarks in the United States. They regulate the use and registration of trademarks to protect companies standing and reputation in the market (Annett, 2020). Enforcing activities of trademark dilution, trademark infringement, and false advertising protect enterprises from financial losses and constructive time that might have been used to execute more critical tasks. Trademark infringement is the reproduction of a company’s trademark without the proper authority and creating a confusing environment to the customer about the origin of the products or services. Trademark dilution is a concept or law giving the trademark owner the power to stop or bar other companies’ use of the mark if it happens to lessen its uniqueness. Trademark dilution gives the well-known trademark the power to prevent any confusion caused to their customers. The purpose for the protection of people’s businesses and ideas from dilution and infringing of trademarks, the Lanham Act has faced much evolving and amendments. The first amendment happened in 1996. Congress decided to include trademark dilution in the Act, which even led to cause more confusion. Trademark Dilution Revision Act was passed by congress in 2006 as an amendment and revision of the Lanham Act to do away with the confusion that resulted after the 1996 amendment. Lanham Act Language and Lanham Act Elements have been used by courts to protect and solve the trademarks cases tabled on the courtrooms by different company owners.
Infringement under “likelihood to confuse” deals with people who use false descriptions and other companies’ names, terms, symbols, words, devices, goods, or services. The aim is to protect a copy of trademark or originality, which may lead to the likelihood of confusion to customers of the well-known company or enterprises (Yen, 2015). Many factors can erupt from using other company’s trademarks; the intention to deceive other customers whose loyalty belongs to the trademark and profiting from their hard work may lead to government involvement. Impersonating the other company may cost them their reputation, causing losses. When the company sues in court, using the infringing trademark may pay heavily for its action. They can lose all the profits they incurred during the infringing trademark. They will also pay for the cost of standing and reputation loss due to the owner’s actions of the trademark. Companies should always embrace originality in what they communicate to the public and avoid causing any confusion that may lead them to break the law. This also tarnishes their reputation when people know they are joyriding on people’s fame instead of having original ideas, which can get them a competitive advantage on the market.
The second section occurs during the commercial promotion or advertisement where companies misrepresent the qualities, characteristics, nature, and geographical origin. The aim could be to try and create a connection with other people’s services, goods, or commercial activities that share the exact details and location. The intention of gaining a competitive advantage from other known companies from unaware customers (NAKANO et al.). This promotion and advertisement may be conducted through a sales presentation, internet advertising, and the use of labels causing commercial or competitive injury to the organization. This will lead to the eruption of the battle between the involved parties. The business should always focus on building trust with their customers, and this cannot be achieved by passing out false information to the people you need the most to generate sales and profits. This false promotion and information will affect the trademark owner as people will still be holding them responsible for the actions they had nothing to do with. The company’s public picture always has to be protected. It creates customer traffic with false promotion and advertisement; the known owner can move to court to defend their name and reputation.
Blurring has been the most reported case of dilution claim, which occurs when a junior or unknown company uses a trademark of the known company, impairing the distinctiveness or weakening of the famous mark. This may also happen when a renowned trademark is associated with a similar trade name or mark of small magnitude without permission (Kruger & Boshoff, 2015). Some significant factors are considered in court to determine whether the action or act is causing dilution by blurring. The degree of similarity will be the much weight factor, whether the junior trade name or mark looks alike with the famous mark and the effects or outcome of this act on the reputation of the known company. Other factors include the degree of distinctiveness, the extent of engagement of the famous mark regarding how active it is in the market, how recognized the famous mark is, whether the junior company intended to form an association and whether there is an actual association. Actions and intentions when it comes to dilution by blurring are keenly looked after to determine the plans of the junior of an unknown company. This will help develop a propitiate punishment if the company is found guilty of intending to dilute another company’s trademark for self-benefits.
Dilution by tarnishment occurs when the standing or reputation of a well-known company trademark is harmed by association with another trademark of a similar mark. These actions are termed unauthorized, unflattering, and offensive to hurt the famous trademark or look for a competitive advantage. The unknown company uses the famous make with connection to offend or disrupt the owner’s reputation beliefs and directly attack and criticize the famous company’s goods and services (Bedi & Reibstein, 2020). Here, the junior company uses the trademark to profit from it and cause conflict, which will end up financially costing the famous company either for an accusation of producing unhealthy products. Unknown companies may use the Adidas trademark to market harmful products, leading to losses for the Adidas company due to people boycotting their products due to unhealthy outcomes after using or consuming them. The tarnished company now has the right to move to court and clear their name while the other company will be required to pay for the damage done, including the reputation and health effects of the people who consumed the products. The statement will clear the Adidas name, saving the constant losses from boycotting produce.
Freeriding is the other form of dilution which mostly happens in our market today costing big companies reputation and stand in the society. This occurs when people use names of well-known companies to name buildings, hotels, vehicles, and other properties used by the public. Here, the two companies are not in the same line of business, but the junior company is freeriding on the company’s efforts to drive traffic to their business (Basma, 2021). The intention here is not for competitive purposes with the leading company but to compete with companies on the same line. Hotel or bar owners may name their business after big companies like Amazon, Gucci, and Apple, hoping to benefit from people who like or know these companies. The actions seem unharmful, but they may end up hurting the big company, either by damaging their reputation or financial losses, which may arise from customers’ emotions created due to inadequate services offered in the hotel leading to them hating the name of the big company too. It is against legal regulation to register your company or property under another person’s trademark, as the process greatly encourages originality.
In conclusion, trademark protection and the legal regulations around the concept should be well understood and respected as they can cost the organization. Organizations should always they are on the right side of the law as breaking it calls unwanted attention from the government or law enforcement bodies and at the same time creates a negative public picture. People should understand the Acts and legal regulations to help them sail smoothly in the business field as they can also be used to protect their company’s interest from people who want to use shortcuts or tarnish their name. A company’s culture, standing in society, and reputation determine much of their success as this factor sets them apart from the other companies in the exact location or country. The difference is what makes people love the companies, and in return, they gain from high sales and profit levels. Every company has the right to protect any person or company from using their trademark without the proper authority hence benefiting from their efforts to build the trademark. They also have the right to protect their trademark and name from bad intentions. Actions and intentions are vital factors around Trademark protection.
References
Annett, M. (2020). When Trademark Law Met Constitutional Law: How a Commercial Speech Theory Can Save the Lanham Act. BCL Rev., 61, 253.
Basma, D. (2021). Dilution Versus Unfair Advantage: Myths and Realities. IIC-International Review of Intellectual Property and Competition Law, 52(9), 1217-1257.
Bedi, S., & Reibstein, D. (2020). Measuring trademark dilution by tarnishment. Ind. LJ, 95, 683.
Kruger, H., & Boshoff, C. (2015). The influence of trademark dilution on brand attitude: An empirical investigation. Management Dynamics: Journal of the Southern African Institute for Management Scientists, 24(4), 50-72.
NAKANO, S., TANIGAWA, H., MIYAWAKI, M., YAMADA, A., & TANAKA, K. Search for Similar Marks for Detecting Trademark Infringement and Dilution.
Nasirov, S. (2020). Trademark value indicators: Evidence from the trademark protection lifecycle in the US pharmaceutical industry. Research Policy, 49(4), 103929.
Yen, A. C. (2015). Intent and Trademark Infringement. Ariz. L. Rev., 57, i.
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