Clare and all,
[EMAIL PROTECTED] wrote:
> Milton Mueller wrote:
> >Note that there are hundreds of FM radio stations in the US who are on
> >"97.x" on the dial and would desire to have the domain name "97.fm" Now I
> >want te TM lawyers among us to tell us why the fact that I may be confused
> >by this makes it a trademark violation that allows any one of them to be
> >sued by the others.
>
> It doesn't. Confusion is only one of the required elements (and is not
> always required under the law in the European Community).
>
> It is unlikely that any radio station would be able to register 97fm as a
> trade mark for their services, because it would not be distinctive, which
> is one of the basic requirements of a trade mark.
First problem I see right here with your evaluation is that Milton was
referring to
97.fm not 97fm. Second, besides that fine distinction, all be it definitive,
route66 is a registered trademark. How is 97fm or 97.fm any different from
a point of distinctiveness?
> By definition if many
> others in the same line of business use the mark in the course of trade it
> is not registrable.
this is a very BIG if in this particular case, which is precisely the point
that
Milton is making.
> Even if by some aberration on the part of the Trade
> Mark Registrar someone succeeded in registering it, they would be unable to
> enforce it, since any other user would have the defences probably both of
> prior use and that the mark was invalid.
If the defendant could show prior use, yes. As to not valid I am afraid
I disagree. (See above for reasons)
>
>
> Nor would an action lie for passing off (common law trade mark
> infringement), since there would be no misrepresentation.
Agreed, if indeed it was not registered and prior use by another party
was shown.
>
>
> However, although any one of them could use 97fm to refer to their service,
> only one of them gets the domain name 97fm.com.
Yes, and 97fm.com is registerable as a trademark as much as is
97.fm or 97fm.
>
>
> Clare Wardle
>
> My views are my own and not necessarily those of my employer or colleagues.
Regards,
--
Jeffrey A. Williams
CEO/DIR. Internet Network Eng/SR. Java/CORBA Development Eng.
Information Network Eng. Group. INEG. INC.
E-Mail [EMAIL PROTECTED]
Contact Number: 972-447-1894
Address: 5 East Kirkwood Blvd. Grapevine Texas 75208
