Trademark

Protecting thousands of brands every day requires breakthrough innovation and proactive strategy. We know. It's what we do.

Trademarks are one of the most important assets your company owns. A trademark is an icon, an instantly recognizable mini-profile of your brand. When properly secured, trademarks boost brand recognition, generate continual income streams, differentiate from your competitors, and in some cases, can be worth more than the physical assets of the company itself.

Merchant & Gould understands the value of your trademarks. Our commitment to realizing the full potential of your intellectual property with outstanding client service and competitive pricing makes Merchant & Gould an unbeatable value in the trademark sector. We offer a full range of global trademark services and provide insight and guidance on the most complicated issues facing brand owners, including

  • Trademark Search and Clearance
     
  • Prosecution and Maintenance
     
  • Trademark Protection: Enforcement and Litigation
     
  • Complimentary U.S. 2(d) Watch Service
     
  • Licensing / Transfer of Rights
     
  • Due Diligence and Audits of IP Portfolios
     
  • Internet / E-Commerce Issues
     
  • Unfair Competition
     
  • False Advertising
     
  • Oppositions and Cancellations before the Trademark Trial and Appeal Board
     
  • Alternative Dispute Resolution
     
  • Domain Name Disputes


Providing experience from the inside out.

Merchant & Gould is consistently ranked as a top filer of trademark applications with the U.S. Patent and Trademark Office. Our trademark group includes three former Examining Attorneys who have collectively examined more than 18,000 trademark applications during their time at the USPTO, in industries from consumer goods, chemicals, natural resources, and industrial goods to healthcare, technology, utilities, and services. This inside knowledge of the Trademark Office allows us to predict the registrability of any type of mark. Our Group maintains an intimate familiarity with the people and processes of the Trademark Office, allowing us to secure registrations with an efficiency that few others can match.

Our TTAB experts, domain name experts, international trademark experts, licensing experts and trial attorneys have helped Merchant & Gould earn its reputation as one of the top trademark and copyright practices in the U.S. and globally. Our trademark database includes more than 60,000 records for hundreds of clients. We clear more than 20,000 docket dates per year.


Building strong brands with preventative measures.

Before adopting and using a trademark or service mark, it's critical to conduct the appropriate due diligence to ensure the mark is available for use and registration in the places you want to use it. A relatively small investment in trademark searching before using the mark or filing trademark applications can help eliminate the risks of potential third-party challenges, the significant costs of related litigation, and the potential need to rebrand your products and services.

Merchant & Gould has partnered with the world's premier trademark research and investigation vendors to cost-effectively analyze trademark registries around the globe. We can quickly provide you with a snapshot of the availability of a particular mark anywhere in the world.

We also conduct full availability clearance searches, investigating not only the official trademark registers, but also common law or unregistered uses of trademarks, trade names, and domain names across a variety of business directories, news sources, brand indexes and other proprietary databases to determine third-party use of the proposed mark in the relevant jurisdictions.

Read more about global trademark search and clearance best practices in our guide, Trademark Clearance and Usage Guide – Important Considerations About Trademarks.


Simplifying the trademark process.

Rather than inundate you with pages of prose, we developed a proprietary trademark modeling tool called Brandscape® that presents trademark information visually so you can quickly and clearly understand how a mark is positioned against those of third parties. Brandscape® helps determine trademark availability, strength, and infringement, and helps us communicate trademark enforcement strategies for our clients' important brands.


Guarding your brand with a global experience.

As foreign trademark issues become increasingly complex with every new law and treaty signed, we provide up-to-the-minute foreign filing counseling, drawing on our worldwide knowledge base and network of over 300 foreign associates in 65 countries.

Merchant & Gould's foreign filing department is highly skilled in procedural patent matters with respect to obtaining rights in other countries. The foreign filing department works with our regional attorneys to coordinate work with law firms in particular countries. We have a large and highly capable staff experienced in obtaining international trademarks, efficiently doing filings, and maintaining international registrations.


Serving clients in countries around the world.

Merchant & Gould has vast experience representing foreign clients seeking advice on U.S. intellectual property laws and helping U.S. clients obtain advice in other countries. We have helped many clients build and maintain international portfolios of trademarks, including internationally-based Cristal, Van Morrison, Julian Lennon, and Santa Margherita, as well as U.S. clients with worldwide portfolios like Radisson, Donaldson, and Polaris.

Several of our attorneys focus on the law, culture and relationships with clients in particular countries and regions of the world. These regional attorneys travel to their regions frequently, visiting with clients and working with them and with U.S. clients to secure and defend trademarks on their behalf. With access to the full spectrum of Merchant & Gould attorneys, staff engineers, paralegals, and legal and administrative specialists, regional attorneys can tap into experience for your every need, including searching, new applications, opinions, special issues, and litigation.


Enforcing your trademarks with unparalleled litigation experience.

Merchant & Gould is consistently recognized as one of the top trademark litigation firms in the United States. We were ranked the fifth-busiest and seventh-busiest trademark litigation practice in the country in recent IP Law 360 Litigation Almanac issues, based on the number of trademark lawsuits the firm handled in a given time period.

We help you understand the scope of your trademark rights, craft reasoned trademark enforcement strategies, and prosecute and defend any trademark-related claims so you can protect and grow the value of your brands. Our Trademark Group includes professionals who specialize in every facet of trademark enforcement, including trademark oppositions and cancellation actions at the Trademark Trial and Appeal Board, e-commerce, Internet law and cyber-squatting violations, false advertising and NAD actions, and experienced trial attorneys who have tried many trademark-related cases before courts and juries.

Our extensive experience in trademark claims enables us to provide the very best representation in the most efficient manner possible. We draw on our massive work product library when handling almost any trademark issue, and can quickly identify issues, assess the merits, formulate the best strategy for accomplishing the desired objectives, and carry through the plan on any trademark-related issue.


Creating standards to manage your company's online reputation.

Social media and the web is increasingly fraught with legal minefields that can harm a company's reputation and relationships. Merchant & Gould is at the forefront of managing brands in social networking, assisting clients in developing social networking strategies that anticipate and avoid problems. Some examples include:

  • Assisting clients in developing internal policies related to the use of their brands by employees on blogging websites
     
  • Working with clients’ internal technology departments to develop standards for access to websites
     
  • Meeting with clients’ marketing, advertising, and public relations teams to review existing online Twitter and Facebook use and recommend revisions moving forward

We also enforce our clients’ marks when third parties use and abuse their brands on social networking sites. We work with social network sites like Facebook, Twitter, and Blogger (Google) on an ongoing basis to resolve disputes. We are familiar with those companies’ online tools and are able to resolve disputes quickly as a result.

In addition to issues involving the management and protection of brands, the use of social media for companies raises privacy and compliance issues. The policies and procedures must be reasonably designed to ensure that associated persons who participate in social media sites for business purposes are appropriately supervised, have the necessary training and background to engage in such activities, and do not present an undue risk to investors. With our brand management experience and our knowledge of the applicable privacy regulations, we help our clients determine the optimal level of social media use consistent with regulatory requirements, including advice concerning the appropriate types of social media, content and level of interactivity, the persons allowed to participate, and recordkeeping and supervision requirements.


Managing your domain name disputes and portfolios.

Proactively managing your domain names is critical in the Internet age, and so is aggressively enforcing your trademarks regarding domain name matters. Merchant & Gould has extensive experience with managing domain name disputes, particularly on behalf of companies who are seeking to enforce their trademarks against cyber pirates. We have handled thousands of domain name matters and have filed hundreds of UDRP actions. We also file federal complaints under the Cybersquatting Consumer Protection Act when appropriate. 

Because of our significant experience in managing these matters, Merchant & Gould has an arsenal of standard letters and forms that allow us to act quickly at a reduced cost. We have standard cease and desist letters that may be modified based on the brand at issue for a variety of situations. We also have developed a standard template for ICANN UDRP actions that contains customizable sections depending on the legal issues in each case.

In addition to handling domain name disputes, we have developed domain name management solutions for clients. Merchant & Gould performs domain name portfolio audits, develops standards for domain name registration and renewal, and works with clients to acquire domain names short of engaging in a dispute.


Optimizing your search engine strategy.

Merchant & Gould assists clients in managing branding issues as they relate to search engine issues such as paid keyword advertising, organic keyword strategies, and search engine optimization. We  counsel clients in the use of trademarks as keywords in advertising campaigns. We work with clients to assess third party use of their marks as keywords and in connection with online advertising. When necessary, we have taken action against third parties, including filing multiple lawsuits on the issue. 

In addition to providing legal counseling related to search engine issues, our attorneys participate in the business side of these matters. We maintain relationships with local and national vendors engaged in search engine businesses in order to stay on top of the technical issues. We work directly with experts in the industry, including former Yahoo! and Google employees who have first-hand experience in online advertising.


Counseling on all matters of the Web.

In addition to social networks, domain names, and search engine issues, we handle a wide variety of web-related legal matters with authority—in fact, Merchant & Gould attorneys literally wrote the book on it. A Legal Guide to the Internet, with the Minnesota Department of Trade and Economic Development, outlines patent, trademark, and copyright issues dealing with the Internet.

We manage website audits, conduct advertising reviews, and develop policies related to website terms and conditions. We also regularly assist our clients in developing policies concerning the protection of copyrights, patents, trademarks, trade secrets, and confidential data and information, including counseling regarding the protection of such information on the Internet, particularly for clients creating or upgrading websites, blogs and web-interactive portals.

Merchant & Gould also works with branded entertainment and web site advertising clearance. We have represented clients in contractual negotiations and clearance for branding, have done extensive advertising and web site trademark review and clearance, and have worked with co-branding and licensing of website use of client’s marks. We work extensively with clients regarding website copyright issues, web site disclaimers, licensing, internet meta-tags and keyword advertising disputes, and website audits.


Protecting your property with a complimentary U.S. trademark watch service.

Merchant & Gould provides complimentary United States 2(d) citation trademark watching to clients. Merchant & Gould subscribes to an additional watch service that tracks refusals based upon a likelihood of confusion at the United States Trademark Office. This service provides early warning of marks that may be confusingly similar to marks of our clients.


Saving you money through strategic relationships.

Our large volume of trademark work allows us to form strategic relationships with third-party vendors like Corporation Service Company, Thomson CompuMark, and CCH Corsearch in order to give our clients the most preferred pricing on trademark research reports and related brand management services.

We can provide U.S. watch services through Thomson CompuMark at reduced fees for publication, and application watching and a variety of international watches. We have unlimited access to a variety of trademark screening tools, which includes full federal and state databases, as well as access to the official trademark registers throughout the world. We use this system for our U.S. and international preliminary searches.

Through Marksmen, we provide trademark in-use investigations and domain name and IP acquisition services via a preferred, premium pricing structure.


Keeping your marketing campaigns effective and legal.

Merchant & Gould provides the strategy and advice you need to create and execute the strongest and most effective advertising, marketing, and promotional campaigns, including

  • Advertising agreements, including agency and client agreements
     
  • Sponsorship agreements
     
  • Web development and technology agreements
     
  • Privacy policies
     
  • Advertising counseling, including green claims, health and nutrition, branded entertainment, testimonials, endorsements, comparative advertising, advertising substantiation, necessary disclosures, product claims, and internal policies
     
  • Internet marketing
     
  • Do not call lists
     
  • Viral and guerrilla marketing
     
  • Coupons and loyalty programs
     
  • Joint marketing agreements
     
  • Promotional advice, including sweepstakes, retail promotions, skill contests, user-generated content contests

We also help protect our clients regarding competitors' promotions before the National Advertising Division, the Children's Advertising Review Unit, and through litigation.


Conducting trademark investigations with efficiency and speed.

How can you track your trademarks on the vast and unwieldy world wide web? Merchant & Gould has developed internal search protocols like the M&G Linker and the M&G Linker App that identify and capture online trademark use, allowing us to quickly and efficiently conduct investigations using public and private databases. We have also developed relationships with third-party vendors who conduct trademark investigations.


M&G Linker®

See the attached pdf of M&G Linker


Protecting your brand against counterfeiters and pirates.

Counterfeiting and piracy is widespread and rampant. Merchant & Gould has years of experience helping clients protect their brands against piracy and counterfeiting in the U.S. and abroad. Our services include

  • Advising clients regarding trademark and copyright registration processes to obtain the strongest intellectual property protection available
     
  • Conducting investigations to uncover the source of the counterfeiting or importing of counterfeit goods
     
  • Working with U.S. Customs and other agencies to locate and prevent the importing and/or trafficking of counterfeit goods
     
  • Using civil and criminal actions to stop counterfeiting, obtain seizures and injunctions
     
  • Seeking monetary judgments and permanent injunctions
     
  • Work with investigators and collection specialists to collecting judgments and track activities of adjudicated counterfeiters
     
  • Shutting down infringing websites and recovering URLs


Solving problems outside the courts.

Not every dispute should go to litigation. In fact, methods of alternative dispute resolution can not only save clients a great deal of time and expense, they will often produce more satisfying results and solutions.

We encourage clients to consider methods of alternative dispute resolution whenever appropriate. In each unique case, we develop our recommendations based on the circumstances of the dispute, our client's short- and long-term goals, and the intellectual property issues at stake. After performing this analysis and conducting in-depth consultations with our clients, we recommend the most cost-efficient option. We provide intelligent guidance and sharply-focused representation through every step of the dispute resolution process you choose.


How ADR works:

Merchant & Gould attorneys can be hired by the parties to a dispute, be referred by a court, or provide counsel to those seeking alternative approaches to litigation. We can host a mediation or arbitration in our office, or can come to your location as appropriate. We have direct experience in courts and jurisdictions nationwide and many years of successful resolutions to draw from. Our experience ranges from mediation of copyright infringement claims to arbitration of complex patent violation claims. As one of the preeminent intellectual property firms in the United States, Merchant & Gould is well-situated to provide superior representation in alternative dispute resolution.

Read more on our Alternative Dispute Resolution page.

Jack Clifford, a lawyer with the firm since 1981, is a member of the Panel of Neutrals, part of the International Trademark Association's Alternative Dispute Resolution (ADR) Program.

Alan Kowalchyk, a lawyer since 1981 and with Merchant & Gould since 1984, has been a qualified provider of mediation and arbitration services in the state of Minnesota since 1999. He is a member of the American Arbitration Association's National Panel of Neutrals and is available to serve in arbitration or mediation of commercial disputes, including all types of intellectual property matters. Alan has served as Chair of the American Intellectual Property Law Association's Alternative Dispute Resolution Committee, has authored numerous articles on ADR and is a frequent speaker on ADR topics.

We're passionate about trademark law.

So passionate that we've established, and co-sponsor with the William Mitchell College of Law, the Paul A. Welter Award for Excellence in Trademark Law, honoring outstanding in-house trademark counsel who have distinguished themselves by their career accomplishments and service to the community. Read more about Paul A. Welter.


Let's talk

With eight U.S. offices, we are at your convenience. Let us help you develop, manage, and protect your valuable brands. Contact us.

MEDIA CENTER

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Events
10/26/17
New Product Launch CLE
Join us for a complimentary CLE where you'll learn how to avoid inadvertently triggering the on-sale bar and how to avoid getting into trademark ownership battles with a manufacturer.Thursday, October 26, 2017 2:30-6:00 p.m.1801 California Street Denver, ...
Events
9/28/17
Merchant & Gould Attorneys Speak at Midwest IP Institute
Three Merchant & Gould attorneys will be featured speakers at the 2017 Midwest IP Institute on September 28 in Minneapolis. Partners Andrew Lagatta, Heather Kliebenstein, and Rachel Hughey will give presentations on the first day of the conference.2017 ...
Articles
9/25/17
Jozefczyk and Lewis Offer IP Considerations for Colorado Startups
Merchant & Gould attorneys Dana Jozefczyk and George Lewis discuss the Colorado startup scene in this Law Week Colorado article.An Intellectual Consideration Merchant & Gould attorneys dish out intellectual property advice in advance of Denver Startup ...
Press Releases
8/15/17
Seventeen Merchant & Gould Attorneys Named Best Lawyers© 2018
Merchant & Gould is pleased to announce that seventeen attorneys from three of its office locations have been included in The Best Lawyers in America© 2018.Best Lawyers compiles lists of outstanding attorneys by conducting peer-reviewed surveys in ...
Press Releases
7/25/17
Loretta Freeman Named in The National Black Lawyers Top 100 and Top 40 Under 40 Lists
Merchant & Gould is proud to announce that attorney Loretta L. Freeman has been named in The National Black Lawyers – Top 100 list for 2017, her third consecutive year to receive this recognition. She has also been named a Top 40 Under 40 Lawyer ...
White Papers
6/26/17
Matal v. Tam
In a plurality opinion in Matal v. Tam, the U.S. Supreme Court affirmed the Federal Circuit and held that the disparagement clause [of 15 U. S. C. § 1052(a)] “violates the Free Speech Clause of the First Amendment.”[1] Although the Justices ...
Events
5/20/17
Nancy Lutz Speaking on International Trademark Law and Practice at INTA Annual Meeting
Nancy H. Lutz, a partner in Merchant & Gould's Washington, D.C. area office, will co-present a course on international trademark law and practice at the 139th Annual Meeting of the International Trademark Association (INTA) on May 20, 2017 in ...
Events
4/5/17
Lutz and Jozefczyk Presenting at ACC Colorado In-House Counsel Forum
Merchant & Gould attorneys Nancy Lutz and Dana Jozefczyk will be speaking at an April 5, 2017 forum hosted by the Association of Corporate Counsel - Colorado Chapter. The forum, "What to Expect in Uncertain Times Under the Trump Administration," ...
Events
2/9/17
INTA Trademark Administrator’s Roundtable
The Washington, D.C. area office of Merchant & Gould will host an International Trademark Association (INTA) Trademark Administrator’s Roundtable discussion on “Non-Traditional Marks and the Traditional Practice” on Thursday, Feb. 9 from ...
Guide Books
2/2/17
Trademark Clearance and Usage Guide
A trademark is a word, symbol, or a combination of both, which serves to indicate that your company is the source of goods. A service mark is the same except it is for services rather than products. Trademarks are valuable assets of your company and should ...
News Alerts
1/6/17
TTAB Rules of Practice Are Changing Significantly
The USPTO Trademark Trial and Appeal Board (TTAB) has adopted new rules.  These rules significantly streamline the TTAB process, including allowing more material to be submitted through a notice of reliance and allowing testimony through declaration.  ...
Events
12/8/16
Lunch & Learn: Understanding the Scope and Impact of the TTAB Rule Changes
Please join us for a complimentary Lunch & Learn CLE covering recent rule changes at the Trademark Trial and Appeal Board.Thursday, December 8, 2016 12:00 - 1:30 p.m.The Minneapolis Club Governor's Room 729 2nd Avenue South  Minneapolis, MN ...
Events
9/22/16
Merchant & Gould Attorneys Present at Midwest IP Institute
Rachel Hughey, Scott Johnston, Andrew Lagatta, and Christopher Schulte, partners in the Minneapolis office of Merchant & Gould, will be featured presenters at the 2016 Midwest IP Institute offered by Minnesota CLE September 22 & 23, 2016 in downtown ...
Press Releases
9/22/16
Fourteen Merchant & Gould Attorneys Named 2017 Best Lawyers©
Merchant & Gould is pleased to announce that fourteen attorneys have been included in The Best Lawyers in America© 2017. Best Lawyers compiles lists of outstanding attorneys by conducting peer-reviewed surveys in which lawyers confidentially evaluate ...
Events
5/21/16
Nancy Lutz Speaking on International Trademark Law and Practice at INTA
Nancy Lutz, a partner in Merchant & Gould's Washington, D.C. office, will be a featured presenter in a course on international trademark law and practice at the 138th Annual Meeting of the International Trademark Association (INTA) on May 21, 2016 ...
Events
4/28/16
Cyberworld CLE in Madison
CYBERWORLD: Protecting Your Brand in Cyberspace Join us for a complimentary CLE focusing on Intellectual Property Law and the ever-evolving Cyberworld Thursday, April 28, 2016 CLE - 2:30-5:00 p.m. Brewery Tour & Beer Tasting - 5:00-6:00 p.m. Concert ...
Events
4/8/16
Christopher Schulte to Speak on Constructing Trademark Surveys at ABA Conference
Christopher Schulte, a trademark attorney in the Minneapolis office of Merchant & Gould, will be a speaker at the American Bar Association Intellectual Property Law Spring Conference in Bethesda, Maryland. Christopher will be serving on a panel with Dr. ...
Events
2/25/16
Merchant & Gould Attorneys Participate in GMA Legal Conference in CA
Two partners from Merchant & Gould's Washington, D.C. office are scheduled to participate in an interactive panel on protecting intellectual property at the Grocery Manufacturers Association 2016 Legal Conference in Rancho Mirage, California.Matt Fedowitz ...
Press Releases
2/17/16
Andrew Ehard Named 2016 Client Choice Award Winner
Merchant & Gould is delighted to announce that attorney Andrew Ehard has received a Client Choice Award from Lexology for the third year in a row. Andy is the exclusive winner of the Client Choice Awards 2016 Intellectual Property – Trademarks category ...
Events
2/16/16
Danielle Mattessich on Panel for Mastering U.S. Trademark Registration Practice CLE
Merchant & Gould attorney Danielle Mattessich will be a panelist in a seminar at the Mastering U.S. Trademark Registration Practice CLE on Tuesday, Feb. 16 in Minneapolis.The CLE, offered by Minnesota Continuing Legal Education, promises a comprehensive ...
Events
2/11/16
Clark Wilson to moderate Atlanta Bar CLE on Trademark and Copyright Litigation
Clark Wilson, an intellectual property attorney in the Atlanta office of Merchant & Gould, has organized a lunch event, eligible for CLE credit, for the IP section of the Atlanta Bar Association.Atlanta Bar Association Intellectual Property Section Luncheon In-House ...
Events
11/19/15
Heather Kliebenstein to speak at Trademark & Copyright Summit
Heather Kliebenstein, an intellectual property attorney and partner at Merchant & Gould, will be a featured speaker at a trademark and copyright conference in Silicon Valley on November 19, 2015.The IP Strategy Summit – Trademark & Copyright: ...
Events
9/24/15
Cyberworld CLE
CYBERWORLD: Protecting Your Brand in Cyberspace Join us for a complimentary CLE focusing on Trademark Law and the ever-evolving Cyberworld Will Schultz – Online Brand Protection and Watching, 2:00-2:30 Greg Golla – Domain Names, Advertising, ...
Press Releases
8/17/15
Thirteen Merchant & Gould Attorneys Included in The Best Lawyers in America© 2016
Merchant & Gould announced today that thirteen attorneys have been included in The Best Lawyers in America© 2016. Best Lawyers compiles lists of outstanding attorneys by conducting peer-reviewed surveys in which lawyers confidentially evaluate their ...
Press Releases
7/20/15
Merchant & Gould Named #2 Trademark Firm in Industry Survey
Intellectual property law firm moves from #5 to #2 in annual rankingsMerchant & Gould, a leading intellectual property law firm, has been ranked number two in a list of top United States trademark firms by Intellectual Property Today.  The publication’s ...
Press Releases
3/23/15
The National Black Lawyers Names Loretta Freeman a Top 100 and Top 40 Under 40 Lawyer
Merchant & Gould is pleased to announce that attorney Loretta L. Freeman has been named in The National Black Lawyers – Top 100 and Top 40 Under 40 lists for 2015, her first year to receive these recognitions.The National Black Lawyers – Top ...
Events
3/20/15
Schulte speech at ITMA Conference in London
Christopher J. Schulte (pictured at right) spoke at the ITMA Spring Conference on IP Convergence on March 20 in London, England. His speech was entitled "Viewing Specsavers Through the Lens of the American Mutilation Doctrine."
White Papers
3/1/15
Use-Based Service Mark Applications Must Be Supported By Actual Provision of the Services in Commerce
In Couture v. Playdom Inc.,[1] the Federal Circuit confirmed that services under a service mark must have actually been provided as of the filing date of a § 1(a) application.  Advertisement that the applicant was ready, willing and able to provide ...
Press Releases
2/23/15
Merchant & Gould Hires “Client Choice” Award Winner as Partner in DC Office
MINNEAPOLIS – (March 3, 2015) – Merchant & Gould, a leading intellectual property law firm, announced today that it hired Nancy Lutz, a recent Client Choice Award winner, as a partner in its Washington, DC office.Ms. Lutz was the exclusive ...
Press Releases
2/23/15
Andrew Ehard Named 2015 “Client Choice” Award Winner
Merchant & Gould is proud to announce that Andrew Ehard, a partner with the firm, is a recipient of the 2015 Client Choice Award for Intellectual Property-Trademarks Minnesota.The Client Choice Award recognizes partners worldwide for excellent client service ...
White Papers
1/1/15
Supreme Court Rules Tacking is an Issue for the Jury
A unanimous Supreme Court ruled on January 21, 2015, that the question of whether the doctrine of trademark tacking applies is factual and generally decided by the fact-finder—and in most cases, the jury. “Tacking” allows a trademark owner ...