intellectual-property, trademarkHere’s the best example I can find:
One-A-Day Vitamin D
In this case the company, Bayer, has trademarked the “One-A-Day” portion as a brand:
http://www.oneaday.com/
As a hypothetical scenario, let’s say I also sell Vitamin D under my own brand. Let’s say I want to create an ad that say something like:
“Quality Vitamin D, Take One a Day”
or
“Quality Vitamin D, Take One a Day for Normal Results, Two a Day recommended.”
Does this collide with Bayer’s trademark/s?
How can one use these generic terms without running into issues. After all, most doctors tell their patients “take one a day for two weeks” when issuing prescriptions.
This is an example. I am not selling vitamins but I find this example aligns closely with the situation I am looking at.
Trademark law is tricky, and takes a law degree, and a lot of experience to get it down. Its also a portion of the law where both sides have won.
Since I'm no law expert, I defer to harvard law school:
A trademark is a word, symbol, or phrase, used to identify a particular manufacturer or seller's products and distinguish them from the products of another.
then further down about trademark infringement:
To be more specific, the use of a trademark in connection with the sale of a good constitutes infringement if it is likely to cause consumer confusion as to the source of those goods or as to the sponsorship or approval of such goods
So moral of the story, if people are likely to confuse the two products, then yes it is infringement. In your story, the doctor saying "Take one a day" is not likely to make you confuse the vitamins, and thus does not constitute infringement.
The example of the ad is a little more tricky, but I would still hold that it doesn't constitute infringement. It is an example of what is called fair use:
Fair use occurs when a descriptive mark is used in good faith for its primary, rather than secondary, meaning, and no consumer confusion is likely to result.
This means that you are in fact talking about the product itself, not making a marketing statement. they use an example of kellogg's:
a cereal manufacturer may be able to describe its cereal as consisting of "all bran," without infringing upon Kelloggs' rights in the mark "All Bran." Such a use is purely descriptive, and does not invoke the secondary meaning of the mark.
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