Asked in Trademark and Intellectual Property

Q: Serial Number79303325Is it possible to patent a Voodoo deity from African culture? This sounds absurd. It's a deity

The owner of this trade mark writes to us and claims that he owns the name of the deity and we are obliged to delete everything or she will sue. But this is a voodoo deity, it cannot belong to anyone.

2 Lawyer Answers

A: I'm going to assume you meant "trademark" instead of "patent" in your question title.

It's important to understand that trademark law only protects words or symbols that are used in commerce to identify and distinguish the source of goods or services. Trademarks do not provide ownership over the underlying concept or idea represented by the word or symbol.

If the deity is a well-known figure in the public domain, and the use of its name in your work is not likely to create confusion or imply endorsement or affiliation with the trademark owner, then you may be able to argue that your use of the name is protected by free speech or fair use principles. Likelihood of consumer confusion is the core of U.S. trademark law.

The likelihood of consumer confusion is at the core of trademark law because the purpose of a trademark is to enable consumers to identify and distinguish the source of goods or services in the marketplace. A trademark serves as a distinctive symbol or sign that represents a particular company, brand, or product, and helps consumers to recognize and associate that symbol or sign with a specific source of goods or services.

Trademark law protects the rights of trademark owners by preventing others from using marks that are likely to cause confusion or create a false impression of association or endorsement with the trademark owner's goods or services. The likelihood of consumer confusion is determined by several factors, including the similarity of the marks, the relatedness of the goods or services, the strength of the marks, and the sophistication of the consumers.

Trademarks only apply to a single class of goods or services (applicants must pay for each class of goods or services, they can apply for more than one, but trademark protection is limited to those particular classes) because trademark law is intended to protect consumers from confusion about the origin of goods or services in a particular category. Trademarks are registered with the government for specific classes of goods or services, such as clothing, electronics, or food, and the trademark owner has the exclusive right to use the mark in connection with those goods or services.

This means that two companies can use the same or similar marks for different classes of goods or services without infringing on each other's trademarks. For example, "Apple" is a registered trademark for computers and electronic devices, and "Apple" is also a registered trademark for a record label. These two companies can coexist and use the same trademark because they operate in different classes of goods and services, and there is no likelihood of consumer confusion between the two.

However, it's important to note that legal disputes involving trademarks can be complex and fact-specific, and it's always a good idea to consult with a legal professional who specializes in trademark law to assess your particular situation and advise you on the best course of action.

James L. Arrasmith
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A: It is not possible to patent a deity or claim exclusive ownership over a deity from any cultural or religious tradition. Deities are considered part of the cultural and spiritual heritage of a community, and they are generally not subject to intellectual property rights. It is important to respect cultural and religious practices and understand that no individual can own or restrict the use of a deity in this manner.

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