And to follow up with a bit of legal summary, excepts from bitlaw.com regarding
trademarks.
"Trademark rights arise in the United States from the actual use of the mark.
Thus, if a product is sold under a brand name, common law trademark rights have
been created."
"A mark is infringed under U.S. trademark law when another person uses a device
(a mark) so as to cause confusion as to the source or sponsorship of the goods
or services involved. Multiple parties may use the same mark only where the
goods of the parties are not so similar as to cause confusion among consumers.
Where a mark is protected only under common law trademark rights, the same marks
can be used where there is no geographic overlap in the use of the marks."
Note, under standard trademark law, E-Gold Ltd would need to argue that using
e-gold in the name of a casino "causes confusion as to the source or
sponsorship", and that the provision of gambling services versus digital
currency issuance are "similar as to cause confusion among consumers." I don't
disagree this is not possible, but I think it would be difficult to prove that
consumers that visit e-gold-casino.com truly have any confusion (particularly
given no similarity in branding).
"The Federal Trademark Dilution Act of 1995 expanded the scope of rights granted
to famous and distinctive trademarks under the Lanham Act. Dilution differs from
normal trademark infringement in that there is no need to prove a likelihood of
confusion to protect a mark. Instead, all that is required is that use of a
"famous" mark by a third party causes the dilution of the "distinctive quality"
of the mark."
In order to avoid proving consumer confusion, E-Gold would need to prove their
mark is "famous." One of the determining factors of whether a mark is famous, is
that it has not been used by third-parties. So, White Bear (and others) are
effectively engaging in preventative infringement, provided E-Gold Ltd cannot
prove now that their trademark if famous.
"Examples of marks which will clearly be considered "famous" would be: XEROX,
KODAK, COCA-COLA, and REEBOK. It would be much harder to protect a mark like
APPLE (computers) against dilution, since the term APPLE has been used in
connection with other well-known products, such as the Beatles records, and has
been used by numerous other business. Of course, the mark APPLE is still
protected against trademark infringement when likelihood of confusion can be
established."
Regarding registration with the USPTO, there are several prohibited categories,
one of which is marks which are "merely descriptive" -- that is, words/phrases
that are merely descriptive of the goods, of a quality or feature of the goods,
or of the geography.
In this sense, "E-Gold" cannot be trademarked by White Bear with respect to
"Casino" given E-gold simply describes a quality of the service (a casino that
accepts e-gold). Perhaps it would be better if they used the tradename "White
Bear's e-Gold Casino" to insure distinction (although the domain
e-gold-casino.com remains fine).
Adam
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