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Hastings Communications and Entertainment Law Journal

Abstract

There is a long tradition of trademark holders relying on the public to create designations that they then adopt as a trademark. Historically, this has been a long and slow process. Acquiring secondary meaning from the individual's first use of the designation could take years. Web 2.0 and other forms of social media have the potential to speed up this process through the use of User Generated Content ("UGC"). Frequently, coined designations are nicknames for well-known brands, so they are potentially quite valuable. Trademark law is ambiguous regarding who owns a designation created by the public, if the individual claiming the mark has not appropriated the mark by actually using it in commerce. Ownership of the mark is one of the elements of a claim of trademark infringement. The public use doctrine attempts to solve this problem by imputing the public's non-commercial use of the designation as a commercial use for the benefit of the referent-mark holder, and so permits the referent-mark holder to appropriate rights in the mark without actually using it in commerce. The public use doctrine is a weak basis on which to claim a crowd-sourced mark; therefore, this article looks at alternative remedies that are available to the referent-mark holder, and concludes that unfair competition or infringement by trademark dilution are better remedies.

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