A trademark is a word, name, symbol, or device that is applied to products to indicate their source and to distinguish them from the goods of others, such as the Maytag label for washing machines. Similarly, a service mark is used in connection with the offering and promotion of a service, such as McDonald’s for fast food restaurant services. A service mark identifies and distinguishes the source of a service, rather than a product. Trade dress is the non-functional and distinctive packaging, dressing, or design of a product – the overall commercial “image” of a product, such as the shape of the Coca-Cola bottle.
As with copyright, federal law prohibits the unauthorized use in certain circumstances of another’s “Mark.” For the most part, such prohibition related exclusively to the use of such protected materials in connection with the sale, distribution, or advertising of goods and services in a manner that is likely to cause confusion, mistake, or deception as to the origin, sponsorship, or approval of the unauthorized user’s goods, services, or activities.
Unauthorized use of a Mark is also prohibited if such use results in tarnishment, which “degrades” the positive associations of the Mark and, consequently, damages the reputation of the Mark and reduces the value of the Mark to its owner.
Fair Use and Trademarks
As with copyright, there is a “fair use” defense with regard to certain uses of Marks. The non-owner may avail herself of this where the Mark is used in a way that makes it clear that the use of the Mark does not imply association or sponsorship of the non-owner’s goods and services. A fair use defense is appropriate where:
- the Mark owner’s goods or services are not readily identifiable without the use of the Mark;
- the user only uses as much of the Mark as is reasonably necessary to identify the Mark owner’s goods or services; and
- the user does nothing that would, in conjunction with the Mark, suggest sponsorship or endorsement by the Mark owner.
A Word on Trade Libel
Commentators generally agree that trademark law should not and, for the most part, cannot be used to suppress criticism of a company or a product. Nonetheless, making disparaging comments about a product may be actionable under the tort of trade libel. Trade libel involves the making of false and/or disparaging statements about the quality of the plaintiff’s goods or services that result in the pecuniary harm to the plaintiff.
There are three categories into which allegedly disparaging statement falls:
- statements that make false or disparaging suggestions as to the plaintiff’s character and also disparage the plaintiff’s goods or services;
- statements directed solely at the plaintiff’s goods or services (in these cases, the plaintiff must prove actual damage); and
- statements that compare products (no recovery is allowed).
The Connecticut Unfair Trade Practices Act (CUTPA) prohibits false or deceptive statement or representations that result in an ascertainable loss to the plaintiff. CUTPA makes actionable false or disparaging statements or representations about the merchandise, services, or business of others even when made by the general public, as opposed to the business’s competitors. For this reason, when creating content that comments on or criticizes a product or service, you must not only clear rights, but check facts.