Last weekend I was at a bar, and as so often happens, I looked around at the various brands around the room. I’m not a beer drinker, but I noticed something interesting that I thought would illustrate a point of trademark law.
Check out the photo below. To you, that looks like the beer taps at a bar. To me, it looks like a “point of sale” display. What is a point of sale display, and why do we care? Because for certain goods, a point of sale display is the only practical way to use the trademark in association with the goods.
Below is another example of a point of sale display for pens. I know you’ve seen one of these at the checkout counter at Staples or Office Depot. The pens are loose in a branded holder rather than wrapped in a package.
Why have a display like this? Perhaps for a number of reasons:
- The decoration on the pens makes it unaesthetic to put the brand name on it.
- The pens are too small to be properly branded.
- The manufacturer wants to encourage people to fondle the pens, which is impossible if they are packaged.
- The manufacturer wants to encourage people to try out the pens
- The point of sale display is more eye-catching and distinctive than the standard packaging
- The display at the counter is more likely to encourage impulse buys (or kids begging Mom to buy it!)
Remember that trademarks are used in conjunction with the sale or offer for sale of goods. So rather than brand the pens themselves, the manufacturer brands the point of sale display. That is considered use “in conjunction with” the sale or offer for sale of the goods.
What if it’s not possible for you to put your brand on the goods at all? Like perhaps because they are liquid? When beer is sold from the tap in bars, we need a way to associate the brand with the goods. (Obviously, when beer is sold in a bottle, this is not an issue.) So how do we do that? With a point of sale display. The brand of the beer sold in that tap is marked by the branded ornament on the tap. That’s how we know the source of that beer. So this is another example of a point of sale display where it’s difficult or impossible to brand the goods by applying the mark to the goods. In a way, the mark is being applied to the packaging for the goods, if we consider the beer tap to be a packaging of sorts.
What other ways might we associate beer on tap with the source? It could be served in a branded pint glass or in association with a branded beer mat.
These are some of the issues that I deal with every day as a trademark attorney, and about which I advise my clients. Proper trademark use is essential in order to maintain rights to your valuable trademarks.
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Contact Dallas, Texas trademark attorney Angela Langlotz today to get started on a trademark application for your valuable brand.