Creating the right trademark that distinguishes your product or service from others is the key to a successful business both online and off. However, one recent legislative enactment is worthy of note, as it might influence your decision in choosing the next name or graphic for your online business.
Like its predecessor, the Federal Trademark Dilution Revision Act of 2006 (“Act”), signed into law in mid-October by President Bush, provides remedies for owners of “famous” trademarks (e.g. trademarks that are widely recognized by the general consuming public in the U.S. as a designation of source of goods or services of the trademark owner). Plaintiffs can file an action for dilution and obtain injunctive relief by showing their trademark has been “diluted” by the unauthorized use of another.
The Act provides for the cause of action known as “dilution.” Dilution is a relatively new addition to trademark law that allows a plaintiff to recover from another's unauthorized use of his trademark where such use degraded or diminished the uniqueness and/or distinctiveness of his famous trademark.
Usually dilution is referenced together with the concepts of blurring and tarnishment. The revised Act specifically cites “dilution by blurring” and “dilution by tarnishment” as new causes of action in themselves. In all its forms lies the dangerous misperception that dilution claims require a showing of consumer confusion. Dilution claims, including blurring and tarnishment, require no showing or likelihood of confusion.
The revised Act is especially relevant to the online business owner in the initial stages of choosing a trademark name or graphic. Under the new cause of action for “dilution by blurring” you may run into problems simply by choosing a trademark that is similar to a famous trademark that causes the famous mark to lose its distinctiveness. Regardless if you adopted your trademark in good faith with no intention of piggy-backing off of the goodwill of a famous name brand, you may be sued for dilution by blurring. Similarly, under the new cause of action for “dilution by tarnishment” you may encounter problems by choosing a name similar to a famous brand if your use causes the famous trademark to suffer loss to its reputation.
It is particularly important to note that the new causes of action for dilution, dilution by blurring and dilution by tarnishment apply a “likelihood” of dilution rather than an actual dilution standard. This means that a plaintiff need only allege that your use is likely to cause or may potentially cause damage to their reputation or to the distinctiveness of their trademark. This new standard wields great power to owners of famous trademarks and could prove potentially lethal to the unsavvy online business owner or entrepreneur.
However, this new power is not absolute and will likely have little effect on comparative marketing and advertising both online and off. Under the revised Act, it is not actionable to compare your goods with that of a famous brand. It is also not actionable to parody a famous brand or trademarked product. For online marketers, this is important, as the Act preserved the traditional free-market idea of comparative advertising. Thankfully Congress recognized and appreciated the benefits of comparative advertising, maintaining its integrity in the revised Act.
From the recent Google decision and this revised Act by Congress, one can glean that although the strings are drawing tighter around the ever-expanding World Wide Web, it remains open to free-market competition and entrepeneurism. However, as trademark law evolves through judicial opinions and legislative enactments, it is always the best advice to consult an experienced intellectual property attorney before setting your branded product or service out into the world through the ether or otherwise.
The Equality Act 2006
On July 12, 2006, Senator Robert Bennett (R-UT) officially introduced his Washington County Growth and Conservation Act of 2006 (S. 3636). The next day, Congressman Jim Matheson (D-UT) introduced companion legislation in the House (H.R. 5769).
These bills could change the face of Washington County, Utah. It could protect lands, but many people also believe it will promote sprawl. Washington County, is located in the southwest corner of Utah bordering Nevada and Arizona. The area covers nearly 2,500 square miles, and has been one of the fastest growing counties in the United States. In the mid 1960s there were only about 10,000 residents; today Washington County has over 100,000 residents. More than 75 percent of the County is Federal land, managed by the Bureau of Land Management (BLM), the U.S. Forest Service (USFS), and the National Park Service (NPS). Also in Washington County include lands held in trust by the Federal government for the Shivwits Indian Tribe and lands owned by the State of Utah. How those lands are managed is a critical issue to the people of Washington County; this bill addresses a wide range of land management policies.
The utility corridors in this bill also plan room for the proposed Lake Powell Pipeline that would direct water into Washington, Kane and Iron counties. The pipeline legislation was signed into law in May of 2006. In order to meet the water demands of an ever-growing population in Southern Utah, these counties are pursuing a pipeline that would run from Lake Powell to Sand Hollow Reservoir. These 158 miles of pipeline would bring 70,000 acre feet of water to Washington County, 10,000 acre feet to Kane County and 20,000 acre feet to Iron County. The pipeline would most likely cost $494 million or more in current dollars.
The Lake Powell Pipeline would allow Utah to tap into its unused portion of the Upper Colorado River water, which was defined in the 1922 Colorado River Compact. The Compact divides the river basin into two areas: the Upper Colorado (comprising Colorado, New Mexico, Utah and Wyoming) and the Lower Basin (comprising Nevada, Arizona and California). Currently Utah is using 74 percent of its annual allocation of 1,369,000 acre feet.
The Washington County Growth and Conservation Act of 2006 bill would designate more than 219,000 acres as wilderness, preserve utility corridors, create an off-road trail system, develop a new conservation area, protect 170 miles of the Virgin River, and sell to the highest bidder up to 25,000 acres of public land at fair market value. As with any change, many people are concerned about the wording of the bill and the future rights for people to use the outdoor lands that they have had access to for years. Saint George has been growing, fast for the past few years and there is a concern about the developers who would buy the land up for bid. Controlling urban sprawl in this area is a concern to many. So much of Southern Utah is an adventure outdoor wilderness area, not many people want to see changes take place that would restrict their access to this ZionMojave Wilderness Area.
This is an area where the Mojave Desert intersects with the Colorado Plateau and the Great Basin. Red Mountain’s incredible sandstone formations, the Beaver Dam Mountains, Cougar Canyon, Dixie National Forest, Cottonwood Canyon, Joshua Trees and Doc’s Pass provide deer hunting, hiking, climbing, cycling, fishing, horseback riding and ATV opportunities.
Lizards, rattlesnakes, iguana, desert tortoise, deer, cougars, and bear all call this area home. Mostly to the west of Saint George, UT the Zion Mojave Wilderness would create one huge recreational adventure opportunity. With Zion National Park to the east and additional parks and BLM lands within miles. In the northeastern part of Washington County, the proposed Deep Creek and Deep Creek North wilderness areas consist of sheer canyon walls which drop to dramatic year-round rivers. There are hanging gardens with wildflowers with bald eagles and giant California condors. The steep and rugged Hurricane Cliffs form the most outstanding feature of another proposed Blackridge Wilderness. Soaring in elevation by 2,000 feet in under a mile, the area is popular for hikers, hunters and photographers.
Here are some of the sections of US Senate Bill number S. 3636
TITLE III--WILD AND SCENIC RIVER DESIGNATION
Sec. 301. Zion National Park Wild and Scenic Rivers.
TITLE IV--UTILITY CORRIDORS
Sec. 401. Utility corridors and rights-of way.
TITLE V--HIGH DESERT OFF-HIGHWAY VEHICLE TRAIL
Sec. 501. High Desert Off-Highway Vehicle Trail.
TITLE VI--RED CLIFFS NATIONAL CONSERVATION AREA
(1) BEARTRAP CANYON- Certain Federal land managed by the Bureau of Land Management, comprising approximately 40 acres, as generally depicted on the Eastern Map, which shall be known as the `Beartrap Canyon Wilderness'.
(2) BLACKRIDGE- Certain Federal land managed by the Bureau of Land Management, comprising approximately 7,145 acres, as generally depicted on the Eastern Map, which shall be known as the `Blackridge Wilderness'.
(3) CANAAN MOUNTAIN- Certain Federal land in the County managed by the Bureau of Land Management, comprising approximately 35,344 acres, as generally depicted on the Eastern Map, which shall be known as the `Canaan Mountain Wilderness'.
(4) COTTONWOOD- Certain Federal land managed by the Bureau of Land Management, comprising approximately 11,650 acres, as generally depicted on the Central Map, which shall be known as the `Cottonwood Wilderness'.
(5) COTTONWOOD FOREST- Certain Federal land managed by the Forest Service, comprising approximately 2,642 acres, as generally depicted on the Central Map, which shall be known as the `Cottonwood Forest Wilderness.'
(6) COUGAR CANYON- Certain Federal land managed by the Bureau of Land Management, comprising approximately 10,568 acres, as generally depicted on the Western Map, which shall be known as the `Cougar Canyon Wilderness.'
(7) DEEP CREEK- Certain Federal land managed by the Bureau of Land Management, comprising approximately 3,320 acres, as generally depicted on the Eastern Map, which shall be known as the `Deep Creek Wilderness'.
(8) DEEP CREEK NORTH- Certain Federal land managed by the Bureau of Land Management, comprising approximately 4,264 acres, as generally depicted on the Eastern Map, which shall be known as the `Deep Creek North
(9) GOOSE CREEK- Certain Federal land managed by the Bureau of Land Management, comprising approximately 89 acres, as generally depicted on the Eastern Map, which shall be known as the `Goose Creek Wilderness'.
(10) LAVERKIN CREEK- Certain Federal land managed by the Bureau of Land Management, comprising approximately 445 acres, as generally depicted on the Eastern Map, which shall be known as the `LaVerkin Creek Wilderness' .
(11) RED BUTTE- Certain Federal land managed by the Bureau of Land Management, comprising approximately 1,124 acres, as generally depicted on the Eastern Map, which shall be known as the `Red Butte Wilderness'.
(12) RED MOUNTAIN- Certain Federal land managed by the Bureau of Land Management, comprising approximately 18,716 acres, as generally depicted on the Central Map, which shall be known as the `Red Mountain Wilderness'.
(13) TAYLOR CREEK- Certain Federal land managed by the Bureau of Land Management, comprising approximately 35 acres, as generally depicted on the Eastern Map, which shall be known as the `Taylor Creek Wilderness'.
(14) WATCHMAN- Certain Federal land managed by the Bureau of Land Management, comprising approximately 600 acres, as generally depicted on the Eastern Map, which shall be known as the `Watchman Wilderness'.
(15) ZION-
It will be an interesting period of time to see ZionMojave grow and prosper.
Both Gemma E. Hoffman & Bob Therrien are contributors for EditorialToday. The above articles have been edited for relevancy and timeliness. All write-ups, reviews, tips and guides published by EditorialToday.com and its partners or affiliates are for informational purposes only. They should not be used for any legal or any other type of advice. We do not endorse any author, contributor, writer or article posted by our team.
Gemma E. Hoffman has sinced written about articles on various topics from Your Online Business. This article was written by Gemma Hoffman, a graduate of Franklin pierce Law School. Gemma writes select pieces regarding intellectual property for the law firm of Goldstein and Clegg, LLC, a. Gemma E. Hoffman's top article generates over 590 views. Bookmark Gemma E. Hoffman to your Favourites.