Arm's Reach pushing WAHMs OUT of REACH!!! UGH!!!!! - Page 2

[MFuglei]

So does this mean I can no longer call myself a co-sleeper without paying tribute to Arms Reach? So legally, I could call myself an Arms Reach Co-Sleeper, but I couldn't call myself a co-sleeper without committing trademark infringement, right?

"Do you sleep with your baby?"
"Yes, my husband and I are. . . um. . . er. . . co-. . . um. . . my husband and I are people who sleep with the baby."

:

[RowansDad]

Originally posted by MFuglei
...but I couldn't call myself a co-sleeper without committing trademark infringement, right?

Wrong. In a nutshell, a trademark owner in an infringement claim has the burden of proving that the infringer's use of a mark has created a likelihood-of-confusion about the origin of the user's **goods or services**.

Your usage above, however, is a drop that leads to a trickle onto a stream that could lead to the mark becoming generic. Readers may find the history of the word ZIPPER pertinent to this thread:

http://www.bartleby.com/61/90/Z0019000.html

Note the difference in another entry for VELCRO:

http://www.bartleby.com/61/73/V0047300.html

I'm sensing a hostillity here to trademark owners in general. Look, a trademark is often a valuable property of a seller or manufacturer, because it is the symbol of the company's goodwill and of its products and services. An extreme example is that the famous US trademark COCA-COLA is worth much more than the entire corporation's bottling plants, commercial offices and other holdings. And it ain't just the commercial juggernaut's that are behind such claims: http://www.womenspress.com/newspaper...5-3amazon.html

Here is another blurb that may better explain, given that it is written by the guru of U.S. TM Law: http://www.sba.gov/hotlist/tmdef.html

Now, I gotta finish what I should be doing and head out with the camcorder to catch the redtailed hawk that is buzzing the 'hood.

[MFuglei]

From your sba site, Rowens dad:
"The name of a type of product cannot be a trademark, because every maker of that product is free to use its name. Sony, for example, is a well-known trademark for televisions, radios, and audio equipment, but no one can have trademark rights to the word television or radio. On several occasions, however, words intended by manufacturers to be used as trademarks for new products were instead used by customers to name the products; such words then lost their legal status as trademarks. Examples include aspirin, cellophane, and escalator. "

So does this mean that after a few years on the market, when everyone is calling WHATEVER tool a "co-sleeper", that the company will lose their trademark as it has become common language? I'm just curious because Kleenex by any other company are still called "facial tissue" even though we all call them Kleenex. . . Or Coca-Cola, though many places in the south people refer to any soda as a Coke (eg. I'd like a Coke, What kind, a Sprite please - I've heard this exact conversation in Clifton, TX).

I'm not exactly hostile, though I do find some of the recently discussed patents and trademarks I've heard of to be. . .well, silly. I've seen so many things marketed as "co-sleepers" that I find it hard to believe that Arms Reach should be the only company to get the title, ya know?

Thanks for the info tho - it was an interesting read.

[RowansDad]

Originally posted by MFuglei
So does this mean that after a few years on the market, when everyone is calling WHATEVER tool a "co-sleeper", that the company will lose their trademark as it has become common language?

I would change "will lose" to "could lose". A lot depends on what a trademark ower does to policy the mark and to bring brand awareness to consumers and/or those who may be using a trademark manner in a generic manner.

For example, RollerBlade is pretty good at bringing brand awareness to its ROLLERBLADE mark and trying to get people to use the term 'in-line skates':
http://www.rollerblade.com/about_us/trademark.html. The folks at Velcro are trying to keep the VELCRO brand alive too:
http://www.velcro.com/about/know.html

And I think I misspoke aways back and noted that CO-SLEEPER was a noun. Actually, the basic rule is that trademarks are *adjectives*, not nouns, e.g. "BAND-AID bandages", "BAYER aspirin", "KLEENIX tissues".

[veganmamma]

Thank you RowansDad for all the info.

I am concerned though, that Arm's Reach TMed the word "co-sleeper" when it is already a generic term for something. KWIM? Everyone already used the term co-sleepING, for the act of sleeping wiht one's child and everyone was already using the term co-sleepER for an apparatus that hooks onto the side of the bed fo co-sleepING. It seems they shouldn't have gotten a TM on something that is already a pretty generic term. TIA for the technical response I know I will get. :LOL

Lauren

[RowansDad]

Are you sure it was a generic term for a side bed before Arms Length adopted it? According to the TM registration information that I posted above, Arms filed to register May, 1997 and claims a first use date of July 1997.

If so, then its competitors absolutely snoozed because they should have opposed the application to register the mark:
http://www.uspto.gov/web/offices/tac...#_Toc536249467

[veganmamma]

I don't know when the term came about to tell the honest truth. It may be that competitors snoozed. The Baby Book came out a long time ago, I'm not sure of the exact date, but I seem to remember reading an old edition of it that used the term co-sleeper and the book may have been older than 1997. I'll have to look into that if I can spare a few seconds.

Also, Arm's Reach is threatening to sue Baby Bunk for using the term co-sleep and co-sleeping in reference to the act of sleeping with one's child- They can't do that, can they? They TMed co-sleepER, not co-sleepING--- not the act of co-cleepING, right?
Lauren

[RowansDad]

Originally posted by veganmamma
Also, Arm's Reach is threatening to sue Baby Bunk for using the term co-sleep and co-sleeping in reference to the act of sleeping with one's child- They can't do that, can they? They TMed co-sleepER, not co-sleepING--- not the act of co-cleepING, right?

We are now getting into an area where whatever answer I give to the above could be construed as legal advice. I just assume not go down that lane. Suffice to say, there is a lotta muscle flexing done in the area of TM law: http://film.guardian.co.uk/news/stor...970926,00.html

But hey, thanks for letting me yap about trademarks in MDC AND LURING ME AWAY FROM WORK!!!

[veganmamma]

:LOL:LOL:LOL YOU lawyers are too funny!! :LOL:LOL:LOL

What's the point of working if you can't be lured away to MDC?

Okay okay, so one poses the theoretical question now...

Say I make slings. New Native TMs the work sling as in the object sling. The New Native Sling. I can no longer call my product sling. I can't even say, wear your baby in a sling! Can they sue me for saying, "Slinging your baby is a great way to keep them close!!"

Hmmmm????...

Well... it was worth a shot- you gotta admire my moxy :LOL
Lauren

[JessicaS]

But don't trademarks have to be classified as a noun or whatever??

I would see if they had "sling" trademarked as a noun. "Slinging" isn't a noun..it is...isn't that a gerund?

[veganmamma]

I'm trying to re-word my question so the answer won't appear to be legal advice. :LOL

[Meiri]

Reading dicussion, but haven't read the links yet, but this thought occurs to me. Baby Bunk and whoever needs to have their lawyers searching the parenting literature for the use of the terms "co-sleeper" and "co-sleeping".

If I'm understanding correctly a company cannot TM a word that's already in generic usage.

I'm not sure, but I think the term has already become generic. We were co-sleeping with our son back in the early 90's... though I don't remember if we used the term or not. I did refer to his toddler bed as a sidecar when we went to that arrangement.

I learned about the concept in Mothering. It seems to me that I was seeing Sears and others discussing the concept on national TV, Oprah for example(back when I used to watch....).

Among the population of families who BF, AP, co-sleep, etc the concept is already generic and has been for years.

[Stevie'sMom]

The terms co-sleep and co-sleeping, have been used by James McKenna dating back to the 1970's with his research on the family bed and bed sharing. I can not understand how a company was able to trademark the word "co-sleeper"...it's like being able to trademark the word "chair" !

RowansDad...can a trademark, once issued, be cancelled??:

[veganmamma]

I agree. Co-sleeper is already generic. i think someone should try to get their TM cancelled.
L

[lilyka]

TM are weird things. I read an article entitled carschooling in a magazine once. very clever. it mused about how as homeschoolers she was in her car educating her children more than she was at home and perhaps she should be called a carschooler. Someone was right on it complaining because they had TM the terem Carschooling and how dare they use it. Dumb! I had used that term before, jokingly but still. it isn't uncommon, it is a verb, and how do you TM everyday language. I could understand Tming a name like coca-cola (can you get me a coke? what kind? a dr. pepper" when I heard my self utter these words was the day i decided I had to move out of TX :LOL not kidding though) but how do you Tm someting so already popular and used?

As for the Arms Reach, for as long as I remember when someone sadi "I am goi g to get a co-sleeper for this baby" it has been the arms reach co-sleeper. I think they have a firm foundation for this. do I think what they are oding is fair, nice or moral? no. but I do believe it is legal within thier rights.

I never thought I would get into an intresting conversation about trademarks.

[Meiri]

So those of us co-sleeping before 1997 were doing what? and our children were sleeping on what?

DS's co-sleeper was his toddler bed. DD's co-sleeper is the crib with one side off.

[LaLa]

Although their trademark could be fought and revoked, who has the money to do it?!

From what I understand the legal back and fourths get very expensive ... tens of thousands of dollars.

We are talking about small wahm businesses who can't afford 30,000 dollar lawsuits that are drawn on and on...

So that is how arm's reach is able to sneak by with this kind of trademark.

It's completely shadey and unethical, IMO.

Look at their trademark item description

Word Mark CO-SLEEPER
Goods and Services IC 020. US 002 013 022 025 032 050. G & S: furniture, jewelry boxes not of precious metals, picture frames, sleeping bags, mirrors

What does jewelry boxes, picture frames, sleeping bags, or mirrors have to do with the cosleeper?

[RowansDad]

Originally posted by LaLa
What does jewelry boxes, picture frames, sleeping bags, or mirrors have to do with the cosleeper?

Because besides bassinets, Arms Reach sells other goods that use the CO SLEEPER mark, like the following: http://www.armsreach.com/access_sheet.asp

There are several avenues to have a trademark registration cancelled, here's one:
http://frwebgate.access.gpo.gov/cgi-...2000&TYPE=TEXT

I note that there was a cancellation proceeding filed against the owner of REALTOR:
http://realtytimes.com/rtinteractive...256B46006C06BC

That proceeding was dismissed, but not because the appeal board found the term generic:
http://williamsoncountyrealtors.org/...2002/page2.htm

[Stevie'sMom]

OK...From the info RowansDad has just supplied us with, Arm's Reach's trademark can be petitioned for cancellation...it's within the 5 year period (the trademark was registered in Feb. 1999).

Now, let's be more realistic about this...Baby Bunk is a run by a WAHM...and we all know that this company wouldn't be able to handle the fees to have this trademark cancelled. Are there any legal organizations that would help out financially in a case like this?

I was loaned a Baby Bunk to use and have passed it on since. I and am so glad that I picked this product over the Arm's Reach...even more so now!!!! I just hate seeing a WAHM work so hard to build a business...one with a great product and then have a big company harress and bully them like this. There has to be something they can do to fight back!!!!!

[lilyka]

Originally posted by Meiri
So those of us co-sleeping before 1997 were doing what? and our children were sleeping on what?

DS's co-sleeper was his toddler bed. DD's co-sleeper is the crib with one side off.

Ok but did you say "we just put our son down in his co-sleeper?" or did you say "we just put him in bed/his little bed/the toddler be next to ours/his side car bed . . . "

They aren't tradmarking the word co-sleeping or co-sleep. they are just trade marking the term co-sleeper meaning specifically ta sedond bed to hook to the family bed for the baby to sleep in. the more I think about the more sense it makes.

a general question about trademarking something like this: Lets say company A has a product that lends itself natuarally to a name like the co-sleeper in question. And then a few years later company b makes a different product that is similar, but improved and usues the same word to describe it (because it so naturally fits and people have come to refer to infant beds attatched to adult beds as cosleepers) If company B were on top of things could they get a a trade mark on the term Co-sleeper before company A or could they just make a statrement saying we are using this and claim it and even though we can't trademark it we want to say neither can company A or any other company because it is already generic. iof course this a mute point because company A in this situation filed for the trademark apparently quite a while ago but if they hadn't. . .