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Testing the concept of distinctiveness in a trademark

We alluded to the globally known and so-called "swoosh" image that is intimately associated with Nike and its shoe/clothing apparel in a recent blog post.

As we noted in our January 6 entry, another company using that iconic mark or something closely similar to it on its products "would be vulnerable to a lawsuit from Nike for trademark infringement."

Why would that be so?

It's pretty obvious, isn't it? The Nike logo is a tremendously valuable asset, a mark that on its own and with no help from anything else instantly puts Nike, Inc., front and center in most consumers' minds the instant that they see it.

That is, the mark is notably distinctive, which is a central requirement of any mark seeking trademark protection in a court of law. Moreover, the likelihood of a consumer being confused upon seeing the mark on, say, a competitor's shoe, is high. That "likelihood of confusion" is the central trademark test, and there is little doubt that Nike would prevail regarding that test in a court contest with a business rival using a swoosh-type mark.

Let's talk chocolate for a moment, specifically the details of an interesting trademark case that was just decided in London involving the global chocolatier Nestle.

Nestle makes the KitKat bar, which many of our Florida readers who love chocolate are likely familiar with.

Does the KitKat bar's shape come immediately to mind? That is, is it sufficiently distinctive to qualify for trademark protection and bar (no pun intended) competitors from making a product that looks identical or closely similar?

The London court ruled that the KitKat shape does not pass the distinctiveness hurdle and that Nestle thus cannot stop its rivals from duplicating it.

Trademark law is a fascinating legal universe, with implications that are immediately weighty and of tremendous importance to a company's bottom line. A proven business law attorney with a background in intellectual property matters can offer guidance and, when necessary, rigorous legal representation, regarding issues surrounding trademarks, as well as copyrights and patents.

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