Gale Encyclopedia Of American Law 3Rd Edition Volume 10 P9 pdf

Reynolds, Osborne M., Jr. 2009. Local Government Law.
3d ed. St. Paul, Minn.: West.
CROSS REFERENCE
Zoning.
TOWNSHEND ACTS
The Revolutionary War in America was the
result of a series of acts levied against the
colonists by the English Parliament. One of
these measures, the Townshend Acts, not only
contributed to the American Revolution but
precipitated the
BOSTON MASSACRE as well.
In 1767 Parliament decided to reduce the
property tax in England. To compensate for
the deficit, Charles Townshend, chancellor of
the exchequer, proposed legislation that would
raise revenue from various taxes directed at the
colonists. These laws, called the Townshend
Acts, imposed duties on the importation of such
articles as lead, glass, paint, tea, and paper into
the colonies. The money collected from the
colonists was to be applied to the payment of
wages of English officials assigned to the
colonies.
In addition to the taxes, the acts also
provided for the maintenance of the American
Board of Customs Commissioners in Boston.
A third aspect of the legislation involved the
disbanding of the New York legislature. This
assembly had staunchly opposed and refused to
accept the Quartering Act of 1765, and all its

meetings were suspended until it complied with
the unpopular act.
Antagonism between the colonists and
English officials over the Townshend Acts
increased, and English troops were sent to quell
disturbances. Agitation continued, and on
March 5, 1770, the Boston Massacr e occurred
when English soldiers fired into a crowd of
hostile colonists, killing five men.
The colonists drafted nonimportation agree-
ments and boycotted English goods. English
merchants felt the loss of revenue, and in 1770
the Townshend Acts were repealed with the
exception of a tax on tea. This tax, retained to
reaffirm the right of Parliament to levy taxes on
the colonists, led to the Boston Tea Party.
FURTHER READINGS
Knight, Carol Lynn H. 1990. The American Colonial Press
and the Townshend Crisis, 1766–1770: A Study in
Political Imagery. Lewiston, Mass.: E. Mellen Press.
Thomas, Peter David Garner. 1987. The Townshend Duties
Crisis: The Second Phase of the American Revolution,
1767–1773. New York: Oxford Univ. Press.
CROSS REFERENCES
Boston Massacre Soldiers; Stamp Act; “Townshend Acts”
(Appendix, Primary Document).
TOWNSHIP
In a government survey, a square tract of land six
miles on each side, constituting thirty-six square
miles. In some states, the name given to the

political subdivision of a county.
CROSS REFERENCE
Town.
TRACING
An equitable remedy that allows persons to track
their assets after they have been taken by
FRAUD,
misappropriation, or mistake. The remedy is also
used in
BANKRUPTCY, commercial transactions, and
property disputes in marital dissolution cases.
Persons who have been victims of fraud,
misappropriation, or mistake may reclaim their
property through the equitable remedy called
tracing. Tracing makes such victims secured
creditors in bankruptcy claims, which means by
law they are the first to claim their share of a
bankrupt’s asse ts. Tracing can be invoked only
if two requiremen ts are met: victims must be
able to identify their property and must show
that they have a claim of restitution in kind.
This means a victim must prove that he has
interest in a specific property and that he is
not simply someone to whom the defendant
owed a debt. Once an individual satisfies these
requirements a bankruptcy court will declare
that the property never belonged to the person
in bankruptcy, so it does not belong to the
bankruptcy trustee, who distributes the pro-
ceeds to the bankrupt’s creditors.

The tracing of assets can be difficult once
money is moved into bank accounts or property
is sold and the proceeds used to purchase other
property. However, there are many tracing rule s
that aid courts in determining if and how much
a person can recover. For example, if a person is
defrauded of real estate and the perpetrator
of the fraud sells the property and invests the
proceeds in corporate stock, the victim may be
able to claim the stock. The victim could not
use tracing to recover the real estate from a
third person who was a
GOOD FAITH purchaser
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
68 TOWNSHEND ACTS
(i.e., the individual did not know that the seller
had defrauded the victim) and had paid a
reasonably equivalent value.
The
UNIFORM COMMERCIAL CODE (UCC) gives
secured creditors the right to trace their
collateral into proceeds of its sale and to trace
these proceeds through commingled bank
accounts. Therefore, if a business pledges their
fleet of trucks to secure a loan, the creditor is
entitled to the proceeds of the sale of the trucks
by the debtor.
Tracing is also used in
FAMILY LAW where a
divorcing

HUSBAND AND WIFE had separate assets
before and during the mar riage. Tracing can be
used to determine if these assets have been
commingled, such as joint contributions toward
the purchase of a home. In this area, as in other
fields covered by tracing, the rules can become
very complex and require the testimony of
expert witnesses versed in accounting and
sophisticated financial transactions.
TRADE DRESS
A product’s physical appearance, including its size,
shape, color, design, and texture.
In addition to a product’s physical appear-
ance, trade dress may also refer to the manner
in which a product is packaged, wrapped,
labeled, presented, promoted, or advertised,
including the use of distinctive graphics, con-
figurations, and marketing strategies. In intel-
lectual property law, a
CAUSE OF ACTION for trade
dress infringement may arise when the trade
dress of two businesses is sufficiently similar to
cause confusion among consumers. In such
situations the business with the more estab-
lished or recognizable trade dress will ordinarily
prevail. Two remedies are available for trade
dress infringement: injunctive relief (a court
order restraining one party from infringing on
another’s trade dress) and money damages
(compensation for any losses suffered by an

injured business).
Like
TRADEMARKS, trade dress is regulated by
the law of
UNFAIR COMPETITION. At the federal
level, trade dress infringement is governed
primarily by the Lanham
TRADEMARK Act
(15 U.S.C.A. § 1051 et seq.); at the state level,
it is governed by similar
INTELLECTUAL PROPERTY
statutes and various common-law doctrines.
Both state and federal laws prohibit businesses
from duplicating, imitating, or appropriating a
competitor’s trade dress in order to pass off
their merchandise to unwary consumers.
To establish a claim for trade dress infringe-
ment, a company must demonstrate the dis-
tinctiveness of its product’s appearance. Trade
dress will not receive protection from infringe-
ment unless it is unique, unusual, or widely
recognized by the public. Courts have found a
variety of trade dress to be distinctive, including
magazine cover formats, greeting card arrange-
ments, waitress uniform stitching, luggage
designs, linen patterns, cereal configurations,
and the interior and exterior features of
commercial establishments. In certain contexts
courts may find that distinctive color combina-
tions are protected from infringement, as when

a federal court found the silver, blue, and white
foiled wrapping in which Klondike ice cream
bars are packaged to be part of an identifiable
trade dress (AmBrit v. Kraft, 812 F.2d 1531
[11th Cir. 1986]).
Goods that are packaged or promoted in an
ordinary, unremarkable, or generic fashion
normally receive no legal protection under the
law of trade dress. For example, containers
shaped like rockets and bombs are considered
hackneyed devices for marketing fireworks and
will not be insulated from trade dress infringe-
ment. At the same time, something as simple as
a grille on the front end of an automobile may
be considered sufficiently original if the manu-
facturer takes deliberate and tangible steps to
promote that aspect of the vehicle over a long
period of time.
The law of trade dress serves four purposes.
First, the law seeks to protect the economic,
intellectual, and creative investments made by
businesses in distinguishing their products.
Second, the law seeks to preserve the good w ill
and reputation that are often associated with the
trade dress of a particular business and its
merchandise. Third, the law seeks to promote
clarity and stability in the marketplace by
encouraging consumers to rely on a business’s
trade dress when evaluating the quality of a
product. Fourth, the law seeks to increa se

competition by requiring businesses to associate
their own trade dress with the value and quality
of the goods they sell.
Trade dress is different from a trademark,
SERVICE MARK,orTRADE NAME. Trademarks are
words, symbols, phrases, mottos, logos,
emblems, and other devices that are affixed to
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
TRADE DRESS 69
goods to demonstrate their authenticity to
consumers. Levi’s jeans, Nabisco cookies, Bic
pens, Ford trucks, Rolex watches, and Heinz
ketchup are just a few examples of well-known
trademarks. Service marks identify services
rather than goods. Roto-Rooter, for example,
is the service mark of a familiar plumbing
company. Trade names distinguish entire busi-
nesses from each other, as opposed to their
individual goods and services. Coca-cola, for
example, uses its trade name to distinguish itself
from other soft drink manufacturers. Under
state and federal law, it is advantageous for
businesses to register their trademarks, service
marks, and trade names with the government.
Conversely, trade dress has no formal registra-
tion requirements and receives legal protection
simply by being distinctive and recognizable.
FURTHER READINGS
American Law Institute. 1995. Restatement (Third) of Unfair
Competition. New York: American Law Institute.

Bouchoux, Deborah E. 2008. Intellectual Property: The Law
of Trademarks, Copyrights, Patents, and Trade Secrets for
the Paralegal. 3d ed. Clifton Park, N.Y.: Delmar
Cengage Learning.
Dorr, Robert C., and Christopher H. Munch, eds. 1999.
Trade Dress Law. 2d ed. Gaithersburg, Md.: Aspen Law &
Business.
Harris, Ray K., and Stephen R. Winkelman. 2003. “Trade
Dress: Always in Style?”IP Litigator 9 (May-June).
Mohr, Stephen F. 1995. Recent Trends in the Law of Trade
Dress. New York: Practising Law Institute.
Prosser, Elise K., and James K. Smith. 2002. “Accounting for
Trade Dress: Companies Need to Accurately Value their
Product’s Unique Packaging or Appearance.” Journal of
Accountancy 194 (November).
Trade Dress, Product Configuration & Design Patent Protec-
tion. 2003. Mechanicsburg: Pennsylvania Bar Institute.
TRADE NAME
Names or designations used by companies to
identify themselves and distinguish their busi-
nesses fro m others in the same field.
Trade names are used by profit and
nonprofit entities, political and religious orga-
nizations, industry and agriculture, manufac-
turers and producers, wholesalers and retailers,
sole proprietorships and joint ventures, partner-
ships and corporations, and a host of other
business associations. A trade name may be the
actual name of a given business or an assumed
name under which a business operates and

holds itself out to the public.
Trade name regulation derives from the
COMMON LAW of UNFAIR COMPETITION. The
common law distinguishes between
TRADEMARKS
and trade names. Trademarks consist of sym-
bols, logos, and other devices that are affixed to
goods to signify their authenticity to the public.
The common law of trad e names encompasses a
broader class of
INTELLECTUAL PROPERTY interests,
including
TRADE DRESS and service marks. Trade
dress is used by competitors to distinguish their
products by visual appearance, including size,
shape, and color, whereas service marks are
used by competitors to distinguish their services
from each other. Gradually, the law of trade
dress and service marks has evolved into
separate causes of action, independent from
the law of trade name infringement.
To maintain a
CAUSE OF ACTION for trade
name infringement, a plaintiff must establish
that it owned the right to operate its business
under a certain name and that the defendant
violated this right by use of a deceptively similar
name. The right to use a particular trade name
ordinarily is established by priority of adopt ion.
In states that require registration of trade

names, a business may acquire the rights to a
trade name by being the first to file for
protection with the appropriate governmental
office, usually the
SECRETARY OF STATE. In states
that do not require registration, a business may
acquire the rights to a trade name through
public use, which means that the law will afford
protection only if it can be demonstrated that a
business and its trade name have become
inseparable in the public’s mind. Under federal
law businesses may acquire the rights to a trade
name only through regular and continued
public use of an individual name. Federal la w
will not protect trade names that are used
sporadically or irregularly.
Once a business has established the right to
use a particular trade name, it must then prove
that the defendant fraudulently attempted to
pass itself off as the plaintiff through use of a
deceptively similar name. Not every trade name
that resembles an existing one will give rise to
liability for infringement. The law will not
forbid two unrelated businesses from using the
same trade name so long as their coexistence
creates no substantial risk of confusion among
the public. For instance, two businesses may call
themselves “Triple Play” if one business is a
video store and the other is a sports bar and
grill. By the same token, the law permits

businesses in different geographic markets to
use identical trade names, unless the good will
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
70 TRADE NAME
and reputation of an existing business extend
into the market where a new business has
opened.
A greater degree of protection is afforded to
fanciful trade names than to names in common
use. Generic words that are widely used to
describe any number of businesses in the same
field may not be appropriated by a single
competitor. For example, a professional part-
nership of attorneys would receive no trade
name prote ction for emblazoning the name
“law office” across its front doors. Such a name
would be co nsidered generic in nature, telling
consumers nothing unique or unusual about
that particular business. The same partnership
would receive full protection for a name that
identifies the firm by the individual nam es of
each partner in the office.
Trade name regula tion serves four purposes.
First, the law seeks to protect the economic,
intellectual, and creative investments made by
businesses in distinguishing their trades. Sec-
ond, the law seeks to preserve the good will and
reputation that are often associated with a
particular trade name. Third, the law seeks to
promote clarity and stability in the marketplace

by encouraging consumers to rely on a
merchant’s trade name when evaluating the
quality of its merchandise. Fourth, the law seeks
to increase competition by requiring businesses
to associate their own trade names with the
value and quality of their goods and services.
Both state and federal laws provide protec-
tion against trade name infringement. At the
federal level, trade names are regulated by the
Lanham
TRADEMARK Act (15 U.S.C. § 1051 et
seq.). At the state level, trade names are
regulated by analogous intellectual property
statutes and various common-law doctrines.
In general, the law of trade name infringement
attempts to protect consumers from deceptive
trade practices. The law does not treat con-
sumers as unwitting dupes and may require
them to make reasonable distinctions between
competitors under appropriate circumstances.
When consumers have been deceived by use of
a deceptively similar trade name, an injured
business may avail itself of two remedies for
infringement: injunctive relief (a court order
restraining one party from infringing on
another’s trade name) and money damages
(compensation for any losses suffered by the
injured business).
CROSS REFERENCE
Lanham Act.

TRADE SECRET
Any valuable commercial information that pro-
vides a business with an advantage over compe-
titors who do not have that information.
In general terms trade secrets include
inventions, ideas, or compilations of data that
are used by a business to make itself more
successful. Specifically, trade secrets include any
useful formula, plan, pattern, process, program,
tool, technique, mechanism, compound, or
device that is not generally known or readily
ascertainable by the public. Whatever type of
information is represented by a trade secret, a
business must take reasonable steps to safeguard
it from disclosure.
Absolute secrecy is not required, however.
Commercial privacy need only be prote cted
from
ESPIONAGE that can be reasonably antici-
pated and pre vented. Trade secrets may be
revealed to agents, employees, and others
ordinarily entrusted with such infor mation, so
long as it is understood that the information is
confidential and disclosure is forbidden. At the
same time, keepin g information strictly confi-
dential does not make it a trade secret unless the
information is useful or valuable. Information
that is common knowledge will never receive
protection as a trade secret. Information must
rise to a sufficient level of originality, novelty, or

utility before a court will recognize it as a
commodity.
Similarly, merely because something has
been classified as a trade secret does not make
every public disclosure of it the theft of a trade
secret. For liability to attach for trade secret
theft, the owner of valuable commercial infor-
mation must demonstr ate that it was appropri-
ated through a breach of contract, a violation of
a confidence, the use of surreptitious surveil-
lance, or other improper means. For example,
most employees who work in a commercially
sensitive field are required to sign a contract
prohibiting them from disclosing their employ-
er’s trade secrets to a competitor or the general
public. These contracts normally bind employ-
ees even after their employment relationship has
ended.
In the absence of a contractual obligation,
employees and others may still be held liable
for disclosing a trade secret if a court finds they
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
TRADE SECRET 71
had reason to know that the information was
valuable and were expected to keep it confiden-
tial. For example, engineers and scientists who
consult on a commercial project are ordinarily
bound by a duty of strict confidentiality that
precludes them from later sharing any informa-
tion they acquire or using it to facilitate their

own research. Although many businesses re-
quire consultants to sign a nondisclosure agree-
ment before beginning work on a sensitive
project, this duty of confidentiality arises from
the circumstances surrounding a particular
venture, independent of any formal agreement
reached between the parties.
Imposition of liability for theft of a trade
secret is not contingent upon a relationship
between the owner of commercial information
and the individual or entity that appropriated it.
Liability may be premised solely on the means
used to acquire confidential commercial infor-
mation. Industrial espionage, which includes
both aerial and
ELECTRONIC SURVEILLANCE,isan
indefensible means of acquiring a trade secret.
TRESPASS, BRIBERY, FRAUD, and MISREPRESENTATION
are similarly illegal. However, the law permits
businesses to purchase a competitor’s products
and subject them to laboratory analysis for the
purpose of unlocking hidden secrets of the
trade. Called “reverse engineering,” this process
is considered by some courts to be the only
proper means of obtaining valuable commercial
information without the owner’s consent.
The owner of a trade secret has the exc lusive
right to its use and enjoyment. Like any other
property right, a trade secret may be sold,
assigned, licensed, or otherwise used for pecu-

niary gain. If the owner of a trade secret
knowingly permits it to enter the public
domain, however, he has waived the right to
its exclusive use and enjoyment. An owner who
has been injured by the wrongful disclosure or
appropriation of a trade secret may pursue two
remedies: injunctive relief and damages. An
INJUNCTION (a court order restraining or com-
pelling certain action) is the proper remedy
when the owner of a trade secret desires to
prevent its ongoing use by the individual or
entity who wrongfully appropriated it. Money
damages are the appropriate remedy when theft
of a trad e secret has resulted in a measurable
pecuniary loss to its owner.
FURTHER READINGS
Cundiff, Victoria A., and Salem M. Katsh. 2002. Trade
Secrets 2002: How to Protect Confidential Business &
Technical Information. New York: Practising Law
Institute.
Lockerby, Michael J., ed. 2000. The Trade Secret Handbook:
Protecting Your Franchise System’s Competitive Advan-
tage. Chicago: Forum on Franchising, American Bar
Association.
Quinto, David, and Stuart Singer. 2009. Trade Secrets: Law
and Practice. New York: Oxford Univ. Press.
TRADE UNION
An organization of workers in the same skilled
occupation or related skilled occupations who act
together to secure for all members favorable wages,

hours, and other working conditions.
Trade unions in the United States were first
organized in the early nineteenth century. The
main purpose of a
TRADE UNION is to collectively
bargain with employers for wages, hours, and
working conditions. Until the 1930s, trade
unions were at a sever e disadvantage with
management, mainly because few law s recog-
nized the right of workers to organize. With the
passage of the National Labor Relations Act
(
WAGNER ACT) of 1935 (29 U.S.C.A. § 151 et seq.),
the right of employees to form, join, or aid
labor unions was recognized by the federal
government.
Trade unions are entitled to conduct a strike
against emplo yers. A strike is usually the last
resort of a trade union, but when negotiations
have reached an impasse, a strike may be the
only bargaining tool left for employees.
There are two principal types of trade
unions: craft unions and industrial unions.
Craft unions are composed of workers per-
forming a specific trade, such as electricians,
carpenters, plumbers, or printers.
INDUSTRIAL
UNION
workers include all workers in a specific
industry, no matter what their trade, such as

automobile or steel workers. In the United
States, craft and industrial unions were repre-
sented by different national labor organizations
until 1955. The craft unions that dominated the
American
FEDERATION of Labor (AFL ) opposed
organizing industrial workers. Trade unions and
labor unions are often thought of as being the
same entity. However, trade unions differ in
that their members are all working in the same
trade, whereas labor unions have workers in
various fields.
During the 1930s, several AFL unions
seeking a national organization of industrial
workers formed the Committee for Industrial
Organization (CIO). The CIO aggressively
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
72 TRADE UNION
organized millions of industrial workers who
labored in automobile, steel, and rubber plants.
In 1938, the AFL expelled the unions that had
formed the CIO. The CIO then formed its own
organization and changed its name to Congress
of Industrial Organizations. In 1955, the AFL
and CIO merged into a single organization, the
AFL-CIO.
Membership in U.S. trade unions has fallen
since the 1950s, as the number of workers in the
manufacturing sector of the U.S. economy has
steadily declined. Union membership in 1995

comprised just 14.9 percent of the American
workforce, compared with a high of 34.7
percent in 1954.
Labor Union
In the United States, labor unions are legally
recognized as representatives of workers in
many industries. In 1935, Congress passed the
National Labor Relations Act (NLRA) to
encourage a healthy relatio nship between pri-
vate-sector workers and their employers. Prior
to the NLRA, employers were not required by
law to recognize a union or to bargain in
GOOD
FAITH
.
In the public sector, most labor unions are
for public workers such as teachers and police.
However, in the corporate sector, unions
represent workers of various fields. Most labor
unions in the United States have membership
in the American Federation of Labor–Congress
of Industrial Organizations (AFL-CIO) or the
Change to Win Federation (CWF), which split
from the AFL-CIO in 2005. The government
saw a decline in unions in the manufacturing
sector and a swift rise in the service industry in
2007. This was due mainly to the shrinking
automotive and manufacturing industries.
The Employee Free Choice Act (H.R. 800,
S. 1041), which has been very controversial,

would enable working people to bargain for
better wages, benefits, and working conditions
by restoring workers’ freedom to choose for
themselves whether to join a union. It would
strengthen penalties for violation of employee
rights when workers seek to form a union and
during first-contract negotiations; provide me-
diation and
ARBITRATION for first-contract dis-
putes; and allow employees to form unions by
signing cards authorizing union representation.
Trade unions and labor unions are often
thought of as being the same entity. However,
trade unions differ in that their members are all
working in the same trade , whereas labor
unions have workers in var ious fields.
CROSS REFERENCE S
Collective Bargaining; Labor Law.
TRADE USAGE
Any system, custom, or practice of doing business
used so commonly in a vocation, field, or place
that an expectation arises that it will be observed
in a particular transaction.
The concept of trade usage recognizes that
words and practices take on specialized mean-
ings in different areas of business. Though these
common understandings are not necessarily
set out explicitly in a written sales or service
agreement, the courts will generally employ
them when construing a commercial contract.

In the United States, the
UNIFORM COMMERCIAL
CODE
(UCC), which has been adopted in some
form in all fifty states, permits trade usage to be
used in the interpretation of sales agreements.
Trade usage supplements, qualifies, and
imparts particular meanings to the terms of an
agreement for the purpose of the agreement’s
interpretation. Contractual language cannot be
interpreted out of the context of the agreement
of the parties.
Union Membership, in 2008
SOURCE: U.S. Department of Labor, Bureau of Labor Statistics, Union Membership,
annual.
Male
Female
White
Black
Hispanic
Total
Number of members (in thousands)
8,938
12,863
2,178
1,960
16,098
20,0000 5,000 10,000 15,000
7,160
Member demographic

ILLUSTRATION BY GGS
CREATIVE RESOURCES.
REPRODUCED BY
PERMISSION OF GALE,
A PART OF CENGAGE
LEARNING.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3
RD E DITION
TRADE USAGE 73
The enforcement of contractual promises
protects the justified expectations of the prom-
isee, the person to whom the promises were
made. Trade usage emphasizes such expecta-
tions. If a particular trade follows a practice so
regularly that the promisee is justified in
expecting that the promisor considered that
practice when making the promise, the practice
becomes a part of the agreement between the
parties. Sometimes usage becomes so common
in an industry that written trade codes are
compiled to provide specific language on
contract interpretation.
Section 1-2.05 of the UCC adop ts the
principle of trade usage. In a contractual
dispute, the party who asserts a trade usage
must prove the “existence and scope of such
usage.” If the trade usage is proved, a court may
use it to “supplement or qualify terms of an
agreement.” The express terms of an agreement
and trade usage must be construed “wherever

reasonable as consistent with each other.” If
the construction is unreasonable, however, the
court will ignore trade usage and apply the
express terms of the agreement.
In the absence of evidence to the contrary,
courts assume that when persons in business
employ trade terms, they intend the terms to
have their commercial significance. To counter
this assumption, the parties must expressly state
within the contract their intention to render the
terms devoid of their trade significance and
reduce them to their ordinary meanings. The
failure to do so indicates the parties’ intention
to use the trade terms according to their
commercial meanings.
Trade Usage as Extrinsic Evidence
The contract language does not have to be
ambiguous before a court may consider trade
usage. To protect against unfair surprise,
however, evidence of trade usage is inadmissible
unless sufficient notice has been provided to the
other party. Trade usage is considered
EXTRINSIC
EVIDENCE
, that is, evidence that is inadmissible or
not properly before the court, jury, or other
determining body. Several factors are relevant to
determining whether the alleged introduction of
extrinsic evidence constitutes reversible error,
including whether the extrinsic material was

actually received, and if so, how; the length of
time it was available to the jury; the extent to
which the jury discussed and considered it;
whether the material was introduced before a
verdict was reached, and if so, at what point in
the deliberations it was introduced; and any
other matters that may bear on the issue of
whether the introduction of extrinsic material
affected the verdict.
CROSS REFERENCES
Sales Law; Extrinsic Evidence.
TRADEMARKS
Trademarks are distinctive symbols of authenticity
through which the products of particular manu-
facturers or the salable commodities of particular
merchants can be distinguished from those of
others.
A trade mark is a device, word or combina-
tion of words, or symbol that indicates the
source or ownership of a product or service.
A trademark can take sever al forms, including
a name, such as Adidas; a symbol, such as
McDonald’s golden arches; or a combination of
the two, such as when the NIKE name is written
with the “swoosh” symbol beneath it. In very
limited cases , a shape or even a distinctive color
can become a trademark.
People rely on trademarks to make in-
formed decisions about the products they buy.
A trademark acts as a guarantee of the quality

and origin of a particular good. A competing
manufacturer may not use ano ther company’s
trademark. The owner of a trade mark may
challenge any use of the mark that infringes
upon the owner’s rights.
The presence of trademark protection for
the name or logo of a company or product is
often indicated by the small symbol of an R in a
circle placed near the trademark. The R means
that the mark is a registered trademark and
serves as a warning that the law prevents
unauthorized use of it. A party may indicate
that it is claiming rights to a particular mark by
displaying a TM rather than an R symbol.
Marks bearing the TM symbol are not regis-
tered, but the presence of the symbol shows an
intent to register.
Origins and Development
of Trademark Law
Trademark law in the United States is governed
by the Trademark Act of 1946, also known
as the
LANHAM ACT (15 U.S.C.A. § 1051 et seq.).
The Lanham Act defines trademarks as includ-
ing words, names, symbols, or combination s
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
74 TRADEMARKS
My Commission Expires:_____________________________________ Notary Public: _________________________________________
TM 1 (7/99)
Trademark/Service Mark Application

COMMONWEALTH OF VIRGINIA
STATE CORPORATION COMMISSION
APPLICATION FOR REGISTRATION OF A TRADEMARK OR SERVICE MARK
(Please type or print)
Applicant (owner) name and address:________________________________________________________________________________
______________________________________________________________________________________________________________
Contact person name and address:__________________________________________________________________________________
_________________________________Daytime phone:__________________________ Fax number:____________________________
Applicant is a:_______________________________________Applicant's state or jurisdiction of formation: ________________________
(entity type, e.g., corporation, partnership, etc.)
Kind of mark (check one):Trademark _______ Service Mark _______
Identify the trademark or service mark (or attach an exhibit of the exact mark): _______________________________________________
______________________________________________________________________________________________________________
Class number(s) of goods or services (see 21 VAC 5-120-100):____________________________________________________________
Describe the product(s) or service(s) the mark represents (identifies):_______________________________________________________
_____________________________________________________________________________________________________________
Date mark was first used anywhere by applicant or applicant's predecessor: _________________________________________________
Date mark was first used in Virginia by applicant or applicant's predecessor: _________________________________________________
PLEASE NOTE: A specimen of the mark must accompany this application.
The applicant asserts that it is the owner of this mark and that the mark is in use in the Commonwealth of Virginia. No other person has
registered this mark or has the right to use this mark in Virginia, either in the identical form thereof or in such near resemblance thereto as
to be likely, when applied to the goods or services of such person, to cause confusion or mistake, or to deceive.
(NOTE: The application must be signed in the name of the applicant, either by the applicant or by a person authorized by the applicant. The
application must be sworn to by the person who signed the name of the applicant.)
Signature:________________________________________________________________Date: _________________________________
Signer’s Name:____________________________________________________________Title:__________________________________
(print or type)
State of:___________________________________________, County/City of:_________________________________________, to-wit:
The foregoing application was subscribed and sworn to before me by _______________________________________________________
on the _______________________________ day of __________________________________, ______.

A sample trademark/
service mark
application.
ILLUSTRATION BY GGS
CREATIVE RESOURCES.
REPRODUCED BY
PERMISSION OF GALE,
A PART OF CENGAGE
LEARNING.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3
RD E DITION
TRADEMARKS 75
thereof that a person uses or intend s to use
in commerce to distinguish his or her goods
from those made or sold by another. Potential
trademarks are categorized by the functions
they perform. Within trademark law are several
specialized terms used to catego rize marks that
may be subject to protection. The categories
include form, mode of use, and, most com-
monly, strength. The four subcategories of
strength are generic, descriptive, suggestive,
and
ARBITRARY or fanciful.
A generic name is the commo n name for a
product and can never be considered a
trademark. Terms such as shoe, ball, hat, and
lightbulb are all generic product names. Some
marks that do not begin as generic may later
become generic if the public adopts the mark as

the general name for that product. Examples of
marks that were not originally generic but later
became so are cellophane and aspirin. Generic
marks are not “strong” because they are not
distinctive. To give trademark status to the
generic or common name of a product would
prevent all other manufa cturers of the product
from identifying it.
A descriptive term tells the consumer
something about the product and may only
become a trademark after it has acquired
SECONDARY MEANING. This occurs after a period
of time during which the term’s association
with that product is exclusive. This acquisition
of secondary meaning is sufficient to make a
mark distinct, meaning that in the eyes of
consumers it has come to represent that products
bearing the mark come from a particular
source. The mark “Brooklyn Dodgers” is an
example of a descriptive mark that is exclusively
associated with a professional baseball team
formerly from New York.
A suggestive term, rather than describing
the product, merely makes a subtle suggest ion
about the type of product and its qualities. It
requires consumers to use their imaginations to
make the intellectual jump between the sugges-
tion and the actual product. For those reasons,
it can be a trademark immediately upon use.
Examples of suggestive marks are Orange Crush

(orange-flavored soft drink), Playboy (sexually
oriented magazine for men), and Ivory (white
soap).
When distinguishing between descriptive
and generic terms, courts try to determine the
viewpoint of the prospective consu mer. Courts
look for the meaning that the buyer of a
product assigns to the contested word. Courts
may also look at the term as used by dictionar-
ies, third parties, trademark owners, texts,
PATENTS, newspapers, literature, and surveys.
Use of a term as a common name indicates
that the word may be the generic name of a
product.
The strongest marks are arbitrary and
fanciful marks, which need not acquire second-
ary meaning. They are strong because they bear
little or no relationship to the products with
which they are affiliated, and thus their use is
not unfair to others trying to compete in the
marketplace with similar products. Arbitrary
marks are common words used in an uncom-
mon way and are used in connection with the
goods in a way that does not describe the goods
or suggest anything about them. Examples
include Camels in reference to cigarettes and
Dial as the name of a brand of soap. Fanciful
words, by contrast, are invented and (at least at
the time they are first applied to the goods) have
no dictionary meaning. Examples of fanciful

marks are Kodak, Exxon, and Rolex.
These considerations force a producer to
select or create a symbol or name for its product
that is suitable for trademark protection.
A producer labors to create a good name for a
product, and a protected trademark prevents
competitors from unfairly capitalizing on the
reputation of that name. When trying to decide
what mark is appropriate, the potential trade-
mark owner should keep in mind a fundamental
rule of trademark selection: In most situations,
one will not be allowed to use a trademark that
another entity already uses. Before an entity
incorporates under a certain name or attempts
to sell a service or product bearing a particular
name, the entity should conduct a search or hire
an attorney to investigate prior or existing use of
the name. Those companies that fail to conduct
this kind of a search or blatantly ignore existing
use of a trademark are likely to face a lawsuit by
any existing owner of the mark. Such a lawsuit
may lead to a court order to stop any infringing
use and an award of damages to the holder of
the mark.
Uniqueness is a major consideration to
the potential trademark owner, regardless of
whether the mark is descriptive, suggestive, and
arbitrary or fanciful. The fewer unique char-
acteristics a mark possesses, the less legal
protection it receives. To compete, the potential

GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
76 TRADEMARKS
trademark owner must consider whether others
need to use a particular mark in conjunction
with a product. A unique mark that bears little
relationship to the product is preferred over a
mark that is more generic.
The Lanham Act distinguishes trademarks
from trade names and service marks and also
addresses certification marks and collective
marks. A
SERVICE MARK is used to identify and
distinguish the services of one company from
another, such as Sears for retail stores, and
American Express for credit cards. A
TRADE NAME
or commercial name distinguishes and identi-
fies a business. The same name or portion of a
name may also serve as a trademark, trade
name, or service mark. An example is the name
Ford Motor Company, which is the trade name
of a company that builds and sells cars and
trucks that bear the trademark Ford. In short,
trademarks apply to products, service marks to
services, and trade names to businesses.
Certification marks endorse products and
certify approval of their origin, quality, or
authenticity. A certification mark is not the
property of the maker of the products upon
which the mark will be affixed. Examples are the

Union Label in garments and various seals of
approval. When the provider of goods or services
belongs to an association, it often advertises or
attaches a collective mark to announce that
relationship. The mark is used on products or
services not provided by the owner of the mark,
typically as a symbol guaranteeing quality and
taking advantage of the supposed benefits to the
consumer that stem from the product’s associa-
tion with the owner of the mark.
Trademark Registration
Traditionally, trademark rights depended on
prior use, but since 1988 a party with a genuine
intent to use a mark may apply for trademark
registration. The applicant must intend to use
the mark in commerce and must intend to do
so in order to sell a product, not merely to
reserve rights for future use .
Registration begins with application to the
commissioner of patents and trademarks in the
PATENT AND TRADEMARK OFFICE. Registration of a
mark means that others w ill be presumed to
know that the mark is owned and protected. By
itself, registration is considered evidence that
the registrant has ownership and that the
registration is valid.
Registration benefits the trademark owner
because it suggests that the registrant did
everything necessary to protect its mark. While
trademark rights actually stem from use, a party

may have difficulty convincing a court that it
had good reasons not to register a mark for
which it now claims a protected right. Such is
the case particularly when a claimed symbol’s
status as a trademark is uncertain, such as in a
dispute over the design of a product as a
trademark.
One may apply with either the principal
register or supplemental register of the Patent
and Trademark Office. The principal register is
for arbitrary, fanciful, suggestive, or descriptive
marks that have acquired secondary meaning or
distinctiveness. The supplemental register is for
descriptive terms capable of acquiring second-
ary meaning. Once a mark establishes secondary
meaning, it can be transferred to the principal
register.
Registration with the principal register is
preferable to supplemental registration for
many reasons. Principal registration is proof
that the mark is valid, registered, and the
INTELLECTUAL PROPERTY of the registrant, which
has exclusive rights to use the mark in
commerce. Further, a registered mark is
presumed to have been in continuous use since
the application filing date. After five years of
continuous use, a registered mark may not be
contested. Registration with the principal regis-
ter means that a potential infringer will be
considered to know about the registrant’s claim

of trademark ownership. The owner of a mark
registered with the principal register has the
right to
BRING SUIT in federal court. Those who
COUNTERFEIT registered marks face criminal and
civil penalties. The owner of a trademark who
registers with the principal register and deposits
the registration with the U.S. Customs Service
can prevent goods bearing infringing marks
from being imported.
A mark on the supplemental register may
become a trademark, but its status as such
has not yet been determined. For this reason,
the presumption created by registration with the
principal register, that the registrant can be the
only valid owner, does not apply to supplemen-
tal registration.
The owners of registered trademarks can lose
their rights in a number of ways. When a trade
or the general public adopts a trademark as the
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
TRADEMARKS 77