[Jewelry making - Article 01188] - Re: [Orchid] Gem Names

[James White]

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>          Seafoam Tourmaline (TM).  That means no one else can legally
>     use those words to describe their product unless it's purchased
>     from that particular company, and the (TM) symbol is legally
>     required when using that name.  That alarms me. 
>
>         I'm not sure whether we should be alarmed, or just laugh
>     ourselves silly!  Maybe both.... :-)  "Seafoam green" is a term
>     which has been used for decades to describe a particular shade of
>     Tourmaline.  That description is, by definition, a part of the
>     public domain. The fact that someone managed to trademark such a
>     name demonstrates profound ignorance on the part of the bureaucrats
>     at the USPTO. 

    To use (TM) or just the TM whether as superscript or not does NOT
    require registration with the USPTO. TM is merely a common law method
    of notifying others of a claim to a trademark and trademarks are only
    specific to the general class (or classes--I think there are 42
    classes available now) of goods and services the owner USES them
    with. Even a registered trademark--which does have to pass USPTO
    standards and does give the owner serious teeth in court--loses value
    if it is not actually IN USE and it is still class specific. 

    Many firms use the (TM) simply knowing that will confuse the naive.
    The fact of the matter is that, if "Seafoam green" has been in common
    use in the jewelry class for years someone merely adding a (TM) with
    it when they use the term gives them absolutely no rights whatever
    (assuming anyone they take to court can document the prior use). They
    probably know that and won't go to the expense of court but they may
    send a stern (and they'll be smart enough not to make it
    "threatening") letter which will probably back down all but the most
    knowledgeable. 

    They would NOT be able to register their "Seafoam green" as their
    trademark if the USPTO found it was in common use but if the USPTO
    didn't know that then they might succeed in getting the registration.
    It takes 5 years after registration before a registered trademark
    becomes virtually uncontestable. If registration gets the trademark
    on the Primary Register on the first round it can be tough to fight
    since the month of public objection time has already passed. But if
    the registration is on the Secondary Register the firm would have to,
    in 5 years, (lie and) affirm that "Seafoam green" had become
    associated "in the public's mind" with their firm and if no
    protesting letters were on file in the USPTO their affirmation would
    likely stick. (It's all a bit more complicated than that but an
    industry watch group to keep the USPTO informed on trademark
    applications that may not have merit could/would perhaps benefit the
    industry if one doesn't already exist. Trademark registration
    applications, unlike patent applications, are publicly available
    records as soon as received--in fact they are available on the
    internet within a couple of weeks of USPTO receipt.) 

    As a general rule firms that are smart enough to use the (TM) are
    smart enough not to spend money going for a USPTO registration when
    they lack clear preemptive rights. 

>         A certain chocolate company (I'm not going to tell you which
>     one) recently isolated the exact gene sequence responsible for the
>     flavor of chocolate.  They applied for, and received, a patent on
>     that genetic code.  Now they intend to charge a licensing fee to
>     every Cacao farmer in the world, each time a new Cacao tree is
>     planted.  I 

    Urban myth. They can CLAIM their process or their method of use or
    even a totally new use of the gene sequence but not the actual gene
    sequence itself. Patents DO NOT cover whatever happens to be
    described in the patent specification as most people falsely believe.
    Patents only cover EXACTLY what is CLAIMED in the claims section of
    the patent and those claims, to be valid, must have a "created by
    man" component (some court decisions are moving this toward a lesser
    "accomplished by man" component such that a "purified" chemical or
    whatever can be claimed but few believe this bent will go to the
    extreme of even giving "ownership" to any of the purified chemical
    let alone any in it's natural state to a patent holder). Extracting
    licensing fees from Cacao farmers for the gene sequence's natural
    occurrence would be impossible. 

    If you actually know of a patent of this sequence then that is
    public information so cite the patent number (or even just the firm)
    for us and we can all find the patent and take a look at the claims. 

James E. White
Inventor, Marketer, and Author of "Will It Sell?
How to Determine If Your Invention Is Profitably Marketable
(Before Wasting Money on a Patent)"       www.willitsell.com

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