Archived posting to the Leica Users Group, 1998/03/06
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Marc,
That an item is in "public" view is not relevant to whether it can
function as a trademark. An obvious example is the Transamerica building in San Francisco. That is both in the public view, and is the logo of that company. Another good example is the Rock of Gibralter. That is in the public view, but it is also the logo for the Prudential Insurance Company.
A trademark is an indicator of source. It is not a copyright. So long as people look at a shape, package, logo, design, or words and think of a single source, you have a trademark. If anyone else uses that same mark in a way that confuses the public as to the source of the product, you have an infringement.
Of equal interest here is copyright. Pictorial, graphic and sculptural works are works of authorship that qualify for copyright protection. Obvoiusly, they are in the public view when displayed. That does not mean that you can "copy" them by taking a photograph, however.
Remember that trademark law protects source indicators in order
to prevent confusion in the sale of goods. It continues for as long
as the mark is used, even "forever."
Copyright law gives a limited (relative to forever <g>) grant of a
monopoly on a work of authorship that is fixed in a tangible
medium of expression, and is done as part of society's bargain
to enourage creativity.
Hope this helps.
Robert Rose
I think everyone here is seriously confusing the function of a
trademark with ideas of copyright law.
>>> Marc James Small <msmall@roanoke.infi.net> 03/05 7:24 PM >>>
>Robert
>I, too, am an attorney, and while I hardly specialize in this area, I
>have done some intellectual property law. Are you suggesting
>that an item in public view can be trademarked? This rather
>astonishes me. I'm not challenging your expertise, but I do not
>believe this is the current state of the law.
>Marc
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