Archived posting to the Leica Users Group, 1998/03/05
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Jim Brick wrote:
<<Fortunately, for photographers who have taken the time to
check it out (me) the Lone Cypress tree is NOT trademarked.
I did a trademark search and it came up goose egg.
<<What they are doing is illegal. They use a circle-r (federal
trademark registration symbol) when they print "Lone Cypress Tree". This is a federal crime because they do not have a
registered trade mark.
<As far as I know, I'm the only one that has bothered to read the
Lanham Act, and do a trademark search for all of Pebble Beach's
"registered" trademarks.
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Jim,
With all due respect, you are going off too strong on an area
where you are not an expert. The issue is not as clear as you make it seem.
As I think everyone recalls, I make my living as a trademark attorney, and my firm's practice is limited to trademark, copyright and patent law. http://www.usip.com I teach trademark law at the University of LaVerne College of Law. We also carry malpractice insurance in case we give an incorrect opinion of law to our clients that results in damage to them.
Pebble Beach has at least two registered trademark designs which incorporate the Lone Cypress as their central feature: 1,548,843 and 1,571,562 are two I found with about 5 minutes searching in our IP library. You would have missed these if you only searched for word marks.
In any event, as any of my students would tell you, federal registration is NOT a prerequisite for enforcement of a trademark under the Lanham Act. I know, because like you I too have read the Lanham Act.
Remember, however, that protection of intellectual property is not just limited to trademark law. If this question were on a final I would expect my students to also examine possible claims under misappropriation theory and copyright, as well as express and implied contract.
I am not going to debate this with you. I get paid $325 per hour to give opinions on this area. LUGGers qualify for a discount. <g>
But I will tell you that reasonable lawyers can present compelling arguments on both sides of this issue.
Again, please take this in the spirit of the LUG,
Robert Rose