Trademark is a mark that differs your business mark from someone else’s business mark. A trademark can be a word or a group of words or any design or image.
A trademark right protects a person’s right on a trademark, which does not allow anyone to use the same trademark. It stops any person from using any mark similar to another’s trademark. However, a trademark does not protect a person from people who are selling similar products or services using a different trademark. An idea or invention cannot be protected by a trademark right. Trademark is an intellectual property right.
Back in the year 1919, free speech was limited. A decision was given in a case called Scheck v. the United States, where it had been said that free speech would not be permitted if it presented a clear and present danger to the society. Other than the clear and present danger, there are other restrictions on free speech. For example, if it involves the language of a terrorist, intellectual property, true threats, speeches inciting violation, and defamation, it is restricted. All these forms of free speech are not allowed. Everyone has a right to speak until he or she uses this right to spread hatred and violence in society.
Registering the trademark under the federal or state law can give the greatest protection to the trademark. A trademark must be registered.
No doubt, registered trademarks have significant advantages over unregistered trademarks. Registration of a trademark serves as a notice of ownership and use of the mark. An unregistered trademark can be protected on the state level by common law. Trademark protection is a part of unfair competition. The federal law of protecting a Trademark is given under the Lanham Act.
An applicant sends his or her application for trademark registration to the Patent and Trademark Office (PTO), which examines the application. If an examiner denies the application, the applicant is given 6 months to reply or amend the application for further sending to re-examination. This process may continue until;
The examiner gives a final refusal on the application, or
The applicant is failed to reply, appeal, or amend for 6months
If an examiner approves the application, it will be published on the official gazette of the PTO. On the publication, if anyone opposes the trademark claiming that this registration may affect his or her business, then he or she can file an opposition. On that opposition, he or she will have to prove that
It will cause damage to him or her if it gets registered
There are legal grounds that prove that the applicant is not entitled to register the mark
If these grounds are not proved, the applicant will get the trademark registration, and it would be published in the gazette of the PTO.
What Is Included and Not Included in the Freedom of Speech Rights?
Certain things are included, and some are not included in the rights of free speech. First, the following rights are included in the Freedom of speech:
Not to speak, i.e. right not to salute the flag
Use of offensive words and phrases which conveys political messages
Advertisement of commercial products and professional services
Right of students to wear black armbands to show protest
Contribution of money in a political campaign
Engagement in symbolic speech
Second, the following rights are not included in the freedom of speech;
To motivate actions that would harm others
To burn things as a part of anti-protest
To make an obscene speech at a school event
To distribute or make the obscene materials
To permit students to write an article against the school administration
To advocate illegal drug use at school events
These are the examples, which the court has decided to either entitle or not under the first amendment protection. The first amendment protects the freedom of speech in the USA.
Trademark and Freedom of Speech
Trademarks no longer violate free speech. A person can obtain a trademark registration from the PTO if his or her trademark is called immoral, disparaging, or scandalous. The application of a trademark may suspend later during the examination due to the disparaging and scandalous nature. However, if later it is not suspended and examined, someone can still oppose the trademark if it is published. The opposition would not prevail if it is on disparagement. Hence, it is good for someone to register his trademark under the PTO as soon as possible.
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