from Wiktionary, Creative Commons Attribution/Share-Alike License
- n. The characteristic of being incontestable.
- n. In United States trademark law, the state of having been registered as a trademark for more than five consecutive years without a challenge, and therefore conclusively presumed not to cause confusion with any other trademark, and to have acquired distinctiveness.
from the GNU version of the Collaborative International Dictionary of English
- n. The quality or state of being incontestable.
from The Century Dictionary and Cyclopedia
- n. The character or quality of being incontestable.
Sorry, no etymologies found.
Some courts treat incontestability as creating a rebuttable presumption of strength, but the analysis should be separate: “there is no apparent reason that the incontestable status of a mark should automatically translate into a well-known mark.”
All the elements came together fast, owing to a factor largely missing from civilian life: the incontestability of command.
Kaplan was struck first by their strict adherence to hierarchy — what he refers to as "the incontestability of command."
Some courts treat incontestability as creating a rebuttable presumption of strength, but the analysis should be separate: "there is no apparent reason that the incontestable status of a mark should automatically translate into a well-known mark."
Side note: trademark really gets confused when it comes to incontestability of a descriptive term that was registered in a particular form, like a particular font — do you focus on the similarity to the mark as specifically displayed, or do you look at the similarity of the word component of the mark, which it’s possible to abstract from the mark?
(Though I think this is a descriptive/nominative use, there is arguably a doctrinal reason to stick with descriptiveness: some of LEYE’s marks are incontestable and nominative fair use is not a specifically listed defense to incontestability; however, courts have used nominative fair use to find no confusion as a matter of law, so that’s not a huge barrier to applying the doctrine to incontestable marks.)
If only the Lanham Act didn’t provide that incontestability is no defense to a violation of §2a, which prohibits the registration of deceptive marks.