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Friday, April 07, 2017 1:06:21 PM
A trademark is not a product. It is a symbol -- a word, shape, color, visual representation, etc. -- that comes to be associated with a certain product or producer in the marketplace over time. That's why you can have trademark rights without a registration. If I sell widgets that are bright orange with a big red W on top, and I'm the first to do it, then nobody else can sell something that could be confused for my product anywhere that consumers reasonably would recognize it even if I don't have a registration.
The key issue in trademark law is consumer perception. The goal is to prevent confusion, so that if consumers come to identify a certain word, color or marking with a particular product, competitors cannot create a cheap knock off product with a slightly different logo to fool consumers into thinking it's real (e.g., fake handbags), or slap a registered trademark on their own product so that people think they're buying the name brand.
So the question is, when consumers look at this product, what will they refer to is as or think it is called? That's the mark that matters IMO
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