IP Reform
 

12/20/2006

By Peter Gransee

Trademarks are a way to get around good limitations in patents (like the pesky fact that patents expire).

All a monopoly has to do is claim that their technical design is so recognized by consumers that they claim a trademark on it. Then it doesn't matter if the patent expired. Sure, the USPTO claims to not allow trademarks on patentable ideas, but it happens. The USPTO is just too overworked. Companies know this and force trademarks through anyways. Then one day you find out that a particular idea or standard is completely inaccessible to you forever.

Trademarks don't expire nor can they be revoked after they pass the 5 year no-contest period. They are much stronger than a patent and a common form of abuse now with big companies.

Did you know for example that the cylinder shape is irrevocably trademarked by mag instrument?

https://trademarks.justia.com/755/01/n-a-75501874.html

This is how mag flashlight came after us back when I was making LED flashlights. They didn't win but it sure cost our little company a lot in legal defense. 

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6/2016

Another example of what can be done with trademarks is "thankyou":

https://trademarks.justia.com/779/81/thankyou-77981515.html

Which was then used to sue for the use of "thanks" in an unrelated market:

http://www.reuters.com/article/us-at-t-citigroup-lawsuit-idUSKCN0YW1K3

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Mag flashlight claims the cylindrical shape for both the trademark and the patent. One said the cylinder shape was for appearance sake ("sleek" shape, etc), the other said it was for functional sake (easier to fit in the pocket, etc). Invalidating the opposite claim. Also see the communications between the examiner and mag.

Ancient history for me but this sort of thing happens in other markets too. 

Prescription drugs are another example.