The phrase "The Virtual Wall" is a
registered trademark ®
of www.VirtualWall.org, Ltd.
(We own both the Trademark and
Service Mark, "The Virtual Wall")
News! On November 5, 2007 our
trademark "The Virtual Wall" achieved the official status of incontestability
under 15 U.S.C. Section 1065.
You can view our Notice of Acknowledgement of Incontestability.
"Kinko's"®, "American Airlines"®, "Harley Davidson"®, and "Verizon"®
are examples of the thousands of words and phrases Americans recognize as
trademarks; names that uniquely identify a product or service.
In a recent speech, Jon Dudas, the Director of the US Patent and Trademark Office stated
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services and are often an organization's most valuable asset."
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"A trademark includes any word, name, symbol, or device, or any combination, used,
or intended to be used, in commerce to identify and distinguish the goods
of one manufacturer or seller from goods manufactured or sold by others, and to indicate the source
of the goods. In short, a trademark is a brand name. "
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US Trademark Law protects the general
public from confusion that would exist if two different parties offered similar products
or services using the same or similar name. Trademark law recognizes that the first person (an
individual, a business, or an organization) to use a distinctive mark for a product or service
has the exclusive right to use that mark to identify such a product or service.
We established the phrase "The Virtual Wall" as a trademark on March 23, 1997 when we
made our temporary web site public and announced the site on several hundred search engines.
Five weeks later, April 28, 1997 we registered the domain name www.VirtualWall.org which
can be verified by entering "VirtualWall.org" at
Network Solutions. The Virtual Wall was very easy to find from any search engine. Within a few
months we had reciprocal links with dozens of veteran-related web sites, including the Vietnam Veterans
Memorial Fund® and the Vietnam Veterans Home Page.
In January, 2001 we applied for Federal registration of the trademark. The whole process took 22 months
and included a period when any other party could file an objection. Based on a claim that the phrase
"The Virtual Wall" was "merely descriptive" the USPTO rejected our application with a "First Refusal."
For example, if the USPTO were to register as a trademark the phrase "ice maker" to one party, no other party would
be allowed to use that phrase to describe an ice maker. Therefore the USPTO would not register the phrase
"ice maker" as a trademark because it is "merely descriptive."
To appeal that first refusal decision, we submitted to the USPTO additional documentation, the
results of a consumer survey, and written legal
arguments that the phrase "Virtual Wall" was "suggestive", not descriptive. Among other things, we
successfully argued that there would be many ways to describe or name a web site similar to ours
without using the phrase "Virtual Wall."
The primary consideration in Trademark law is "Would there be consumer confusion if the mark
identified similar products or services offered by different parties." We have received hundreds of email
notes that demonstrate that such confusion would exist if two similar web sites used the name "The Virtual Wall."
There are many registered trademarks that are suggestive or even completely descriptive, for example "United Parcel
Service®", "American Airlines®", "National Football League®", "Major League Baseball®
"Veterans of Foreign Wars®", "Disabled American Veterans®." Hundreds of other trademarks are
valid registered trademarks based on the principle that the phrases were established in the public domain
and consumers would be confused if more than one party used that phrase to identify the source of a service
or product.
You can read more about how the phrase "The Virtual Wall" is
not merely
descriptive.
You can read why the phrase "Vietnam Veterans Memorial" is NOT a trademark.
We have successfully stopped unauthorized use of our trademark. Two other parties used the phrase "Virtual Wall"
to attract visitors to their web sites. We explained the trademark law implications and described that we had
email notes showing that relatives and friends of Vietnam War casualties would be confused and sometimes
distressed by dual use of a name that had been determined by law to be our exclusive right. Those other users of our trademark quickly
agreed to stop using our name.
You may have noticed that for several years we used the "TM" designation on our icons and text in relation
to the name "The Virtual Wall." "TM" is used to indicate a non-registered trademark; one that is an
established trademark but not yet fully examined and accepted by the US Patent and Trademark Office. When our
trademark registration was finally accepted after scrutiny, rejection, appeal, re-examination, and then
approval of the USPTO, we could, and did begin using the ® symbol to indicate Federal registration.
We would greatly appreciate assistance from an experienced attorney to help us with future
trademark and copyright issues.
Our U.S. trademark registration verifies that:
- We were the first to use the mark "The Virtual Wall" for
a web site honoring Vietnam War casualties.
- The phrase "The Virtual Wall" is distinctive and is not
"merely descriptive."
- The phrase "The Virtual Wall" and various derivations are
our exclusive property.
- We can use the "®" symbol in connection with our
trademark name.
- We could sue in Federal Courts to stop infringement if we
could afford to. Trademark laws are not enforced by any police.
You may view a copy of our
trademark registration.
Search for "The Virtual Wall" on the USPTO web site.
Read Frequently Asked Questions on the USPTO web site.
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The actual wording of our
Registered Service Mark, "The Virtual Wall" for the web site: |
| COMPUTER
SERVICES, NAMELY, AN ONLINE COMMEMORATIVE MEMORIAL FEATURING
INFORMATION AND DISPLAY OF PHOTOGRAPHS AND TEXT IN THE NATURE OF
PERSONAL MEMORIALS TO INDIVIDUALS WHO DIED IN
THE VIETNAM WAR. FIRST USE: 19970323. FIRST USE IN COMMERCE: 19970323 |
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The actual wording of our Registered Trademark, "The Virtual Wall" for the CD-ROM: |
| Goods and
Services IC 009. US 021 023 026 036 038. G & S: Electronic database
in the nature of a commemorative memorial to persons who died in the
Vietnam War in the form of text, hypertext, image, and sound files
recorded on computer media. FIRST USE: 20010523. FIRST USE IN COMMERCE:
20010523 |
The items below are Trademarks
(TM), not yet registered, of www.VirtualWall.org, Ltd.
These marks are protected by the laws that cover non-registered
trademarks.
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This
graphic, with or without text, to identify a
web site as in registered Service Mark # 2,638,621 |
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This
graphic, with or without text, to identify a
CD-ROM or other media as in registered Trademark # 2,740,478 |
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This
graphic and/or the phrase "FACES OF FREEDOM" to
identify an index of memorials using images of those memorialized. Our
first use was 11/11/2000. |
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This
graphic and/or the phrase "HEIGHT OF VALOR" to identify
an index of deceased persons who have earned the highest military
honors. Our first use was 04/05/2001. |
The phrase "The Virtual Wall" is not
"merely descriptive" of our web site:
First, the US Patent and Trademark Office carefully considered this exact issue, then ruled in our
favor that the phrase "The Virtual Wall" is NOT descriptive.
Second, media news outlets have used the phrase "virtual wall" for dozens of other meanings:
- Hundreds of references to electronic surveillance
of our border with Mexico as a"virtual wall".
- Dozens of references to a sports team's defense as a "virtual wall".
- Dozens of references to individual athletes as a "virtual wall".
- Dozens of references to a tsunami or flooding as "a virtual wall of water".
- References to a witness or prisoner as being "a virtual wall of silence."
Third, a device that guides a robotic vacuum cleaner is trademarked as a "virtual wall".
That US trademark and ours don't conflict because consumers would not confuse the two very
different products or services. In fact, the very different use of the same phrase
strenghthens our trademark. Similarly, consumers wouldn't
confuse Ford Bubble Gum with Ford Motor Company.
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The phrase "Vietnam Veterans Memorial" is
NOT a trademark:
Some people have asked us if our use of the phrase "Vietnam Veterans
Memorial" infringes on a trademark. It does not. No person or party
holds either a registered or non-registered trademark on the phrase
"Vietnam Veterans Memorial."
The phrase "Vietnam veterans memorial", by itself, can not be trademarked:
(A decision by the US Patent and Trademark Office)
- The phrase "Vietnam veterans memorial" is descriptive, not a proper noun.
- There are hundreds of Vietnam veterans memorials around this country.
- The first Vietnam veterans memorial in the US was built in New York City in 1968.
- The National Vietnam Veterans Memorial was built in New Mexico in 1979.
- The Vietnam veterans memorial was built in Washington, DC in 1982.
- The Moving Wall Vietnam Veterans Memorial began traveling in 1984.
- This web site, The Virtual Wall, is a Vietnam veterans memorial.
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