Bad faith (bad intent) :
A mental state characterized by an intent to deceive consumers by using a competitor’s trademark or one that is confusingly similar to it. Bad faith is not required to find trademark infringement or dilution. However, courts are far more likely to award monetary damages in a case where there is bad faith on the part of the defendant. Evidence of bad faith has been found to exist where the defendant failed to conduct a trademark search prior to adopting a mark. Interestingly, bad faith is not always found where the plaintiff’s mark came up in defendant’s trademark search. That is because the defendant may have had a good faith belief that the mark was already diluted from extensive use by others, or that the products or services sold by plaintiff were sufficiently different that those defendant planned to sell.
Balance of Harms :
Prior to ordering injunctive relief, which is an equitable remedy, the court must weigh the harm to defendant if the injunction is imposed, against the harm to plaintiff if no injunction is ordered. There have been cases where the court finds likely consumer confusion (the requirement of a finding of trademark infringement), yet refuses to enjoin the defendant from using the mark on the basis that defendant made a substantial good-faith investment in a mark, and the harm to defendant in loosing that investment outweighed the harm to plaintiff. See e.g. Mushroom Makers, Inc. v. R.G. Barry Corp., 580 F.2d 44 (2d Cir. 1978).
Barring importation of goods :
There are a couple steps trademark owners can take to prevent the importation into the United States of counterfeit goods, gray-market goods, or goods that bear confusingly similar marks. First, the owner of a trademark registration or the user of a trade name for six months can record their marks with U.S. Customs who can stop the importation of such goods. Second, the trademark owner can petition the International Trade Commission who has the power to issue temporary or permanent exclusion orders that bar the importation of goods.
Benelux Registration system :
A treaty governing trademark registrations for the countries of Belgium, the Netherlands, and Luxembourg.
Blackout period :
The period in which an Intent to Use trademark applicant is prohibited from filing an Amendment to Allege Use, or a Statement of Use. This period begins once the mark is published in the Official Gazette, and continues until the USPTO issues a Notice of Allowance.
Book titles, protection of :
Book titles are generally not protected under trademark law unless they are part of a series. However, even if the title is not of a book belonging to a series, it may theoretically receive trademark protection as long as the title is used in the manner of a trademark and has acquired secondary meaning. Secondary meaning is also required if the title of the series itself is descriptive of the general contents of the series.
Brand name :
The popular vernacular for a lingual trademark, typically used in conjunction with goods. Thus, even though a brand name is always a trademark, a trademark is not always a brand name, since a trademark may be a sound, a color or product packaging, etc.
