DECRETO 89/1994, de 15 de febrero, de modificación del Decreto por el que se articulan diversas medidas para la aplicación del proceso de normalización del uso del euskera en las Administraciones Públicas Vascas.
|Sección:||1 - Disposiciones Normativas|
|Emisor:||Presidencia, Regimen Juridico y Desarrollo Autonomico|
|Rango de Ley:||Decreto|
a descriptive term may become a valid common law trademark when, as a result of its use, prospective purchasers come to perceive it as a designation that identifies goods or services as produced or sponsored by a particular person. Restatement of the Law Third, Unfair Competition, ßß9, 13 and 14. Such a mark is said to have acquired secondary meaning.
The Complaint equates "Fla Lottery" with "Florida Lottery," recognizing that "Fla" is a widely known and used abbreviation of "Florida." It follows, therefore, that the existence of trademark rights in "Fla Lottery" also depends upon whether it has acquired secondary meaning.
The Complaint alleges, and Respondent has not denied, that both "Fla Lottery" and "Florida Lottery" have, in fact, acquired secondary meaning by reason of their extensive use in connection with Complainant's game pieces and lottery services. There is no evidence of descriptive usage of these terms by others. Further, the existence of the above-mentioned statute prohibiting unauthorized use should be viewed as an indication that use of the terms by others is unlikely. Accordingly, the Panel finds that Complainant has established the existence of secondary meaning for both "Fla Lottery" and "Florida Lottery."
With respect to the question of whether "Fla Lottery" is a mark in which Complainant has rights, the Panel has considered also whether this term might be merely the distinguishing feature of a domain name and not a service mark or trademark. It is clear that "flalottery.com" is Complainant's domain name, but this alone does not establish that "Fla Lottery" is a trademark or service mark within the meaning of Section 4.a.(i) of the Policy.
Based on the present record, the Panel finds that "Fla Lottery" (or "FLA LOTTERY") is also a mark in which Complainant has rights. Paragraph 15 of the Complaint says that "Fla Lottery" is "widely advertised, has achieved widespread recognition and earned . . . consumer trust built directly on the . . . 'Florida Lottery' mark." Paragraph 16 says that "Fla Lottery" serves "as a well-recognized symbol of source of services provided by" Complainant.
The domain name in issue is readily recognizable as a misspelling of Complainant's mark "Florida Lottery." The omission of one "t" from "lottery" is not sufficient to avoid confusing similarity.
Indeed, the Complaint charges, and Respondent has not denied...
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