Difference between revisions of "Commentary:Use for Non-Software"
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There is also little question that in the United States there will be a "use in commerce," for which trademark rights accrue, even if the goods are given away for free. | There is also little question that in the United States there will be a "use in commerce," for which trademark rights accrue, even if the goods are given away for free. | ||
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Revision as of 15:07, 20 June 2013
The "Commentary" pages are are explanatory material relevant to those adopting the Model Trademark Guidelines, like Reporter's Notes for a Restatement or advisory committee notes for model laws. They provide information to the end users of the guidelines about the legal, practical and ideological rationale embodied in the guidelines.
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Contents
Commentary on Use for non-software goods and services
United States
The standard for control over promotional goods is probably more relaxed than for core goods:
If a licensee uses the trademark of a beer or soft drink manufacturer on clothing or glassware, for example, prospective purchasers may be unlikely to assume that the owner of the trademark has more than perfunctory involvement in the production or quality of the licensee's goods even if the manner of use clearly indicates sponsorship by the trademark owner. On the other hand, if the licensee's use is on goods similar or identical to those produced by the trademark owner, purchasers may be likely to assume that the goods are actually manufactured by the owner of the mark. Greater control by the licensor may then be necessary to safeguard the interests of consumers who may purchase the goods on the basis of the licensor's reputation for quality.
Restatement (Third) of Unfair Competition § 33, cmt. c (1995); see also Experience Hendrix, LLC. v. Elec. Hendrix, LLC., No. C07-0338 TSZ, 2008 WL 3243896 at *7 (W.D. Wash. Aug. 7, 2008) ("The type of quality control required to prevent abandonment varies with the circumstances").
There nevertheless is still a duty to exercise quality control, so there should be some effort to have standards that will ensure consistent quality, like the use of vendors authorized by the project or specifications of level of quality for the promotional product.
There is also little question that in the United States there will be a "use in commerce," for which trademark rights accrue, even if the goods are given away for free.
