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Trade Mark Basics/FAQs |
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What is a trademark? |
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A Trade Mark is a sign that may help to distinguish goods or
services of one company from those of other companies. This is more or less
the standard definition of a Trade Mark as used in the legal field. Other
fields of science or business will use other definitions of what constitutes
a Trade Mark.
The two key words in the legal
definition of a Trade Mark are probably ‘sign’ and ‘distinguish’. A sign can
be much more than one may expect. The most obvious signs or Trade Mark are
words. Word marks can consist either of an existing term or a coined word.
Other common marks are logos (or ‘device marks’) or a combination of one or
more words and an image.
Other signs may also help very
well to distinguish certain products from others. The label on a product,
the colours and shape of the product or of its packaging and combinations of
these may also fulfil this role. There are also less evident signs that may
also function as Trade Marks like sounds or smells. The definition is not
exhaustive. Again, basically any sign may be regarded as a Trade Mark as long
as it fulfils its distinctive role.
The other essential word is to
‘distinguish’. Not all signs are able to distinguish goods (or services) for
various reasons. Words may describe the product itself or certain qualities
or features for a product. In that case, such a word can by definition, not
at the same time distinguish certain of those products from the same
products from another company.
Other words were originally
distinctive signs/Trade Marks but have become generic as a consequence of
generic use of it. There are signs that are so commonly used that the public
cannot distinguish goods from other goods, so they are simply
non-distinctive.
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How do you obtain a right to a Trade Mark? |
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There are basically two ways or systems to obtain the right to a
Trade Mark.
These depend on the legal system of the country where the right is obtained.
There are countries where the actual use of a Trade Mark in commerce creates
the right to that mark. The fact that a company at a certain point in time
starts to use a certain Trade Mark on products, on product packagings etc. is
sufficient for them to be able to claim a right to that Trade Mark.
The majority of countries have legal systems requiring that a
Trade Mark is
registered in a specific trademark register. Or that at least an application
for registration of the trademark is filed with the authorities that
maintain the Trade Marks register. These Trade Mark registers are open for
inspection by the public. They allow third parties to check if a certain
mark is registered or filed for and what the exact status of the application
or registration is. This is essential information for companies that want to
introduce a new product under a new Trade Mark. Before the launch (and final
selection) of such a Trade Mark research has to be done to verify whether the
new Trade Mark infringes upon the (Trade Mark) rights of third parties.
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What is a patent? |
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A Patent is a legal right, which in return for full disclosure of an
invention, grants the holder of the Patent exclusivity in relation to the
invention for a limited duration. The maximum duration is generally 20 years
and after expiration of this period, the invention falls into the public
domain. The Patent is designed to encourage innovation.
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How do you obtain a patent? |
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What is copyright?
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A copyright is the legal right granted to an author, composer, playwright,
or artist to exclusive publication, reproduction, sale, distribution, or
performance of an independently created literary, musical, dramatic, or
artistic work.
Copyright gives the creators of certain kinds of material the right to
control the ways their material can be used. These rights begin as soon as
the material is recorded in a tangible medium of expression. The owner of a
copyright in particular material may prevent others from doing any of the
following
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copying;
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adapting or creating derivative works;
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distributing;
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communicating to the public by electronic transmission;
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renting or lending copies to the public; and,
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performing in public
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How do you obtain a right to and what is covered by copyright? |
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In many countries, there is no official register for copyrights. Unlike
patents, registered designs or trade marks, there is no need to file an
application or take any official action. A copyright comes into effect
immediately, as soon as something that can be protected is created and
"fixed" in some way in a medium of expression such as paper, film, sound
recording, or an electronic format such as the Internet. Examples of some of
the types of works that can be the subject of copyright protection are the
following;
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original literary works, e.g. novels, instruction manuals, computer
programs, lyrics for songs, articles in newspapers, some types of databases,
but not names, trademarks, phrases or slogans.
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original dramatic works, including choreographic works of dance or mime;
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original musical works;
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original artistic works, e.g. paintings, engravings, photographs,
sculptures, collages, works of architecture, technical drawings, diagrams,
maps, logos;
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published editions of works, i.e. the typographical arrangement of a
publication;
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sound recordings, which may be recordings on any medium, e.g. tape or
compact disc, and may be recordings of other copyright works, e.g. musical
or literary;
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films, including videos; and
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broadcasts
A copyright protects the way an idea is expressed in a piece of work, but it
does not protect the idea itself. |
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What is an industrial design? |
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Products are designed to be functional and to look nice. The appearance of
the product can add commercial value to it and so make it more appealing to
the consumer. If a product is produced on a commercial scale, its appearance
may be registered as an industrial design. If only one is produced, this is
not an industrial design, but is protected by copyright as a ‘work of art’.
Designs can be registered country by country (either nationally or through
the International Registration system operated by WIPO) or in the European
Union as a whole. Registration provides the owner with the exclusive right
to exploit that design, and this right can be enforced not only against
those who copy the design, but also against those who independently come up
with a design which is too similar to that which is registered.
In order to be registrable, the design generally needs to be new and
original at the time the application is filed, although some territories
allow a period of grace before filing. The interpretation of ‘new’ and
‘original’ also varies by country, and in practice, fairly similar designs
are often accepted for registration. There are usually provisions for the
owner of an earlier registration for a similar design to object though. The
period of protection varies from country to country, but generally designs
are registered for five year periods, being renewable every five years for
up to 15 to 25 years.
A design does not necessarily need to be three-dimensional to be protectable.
Patterns and images applied to the surface of a product (eg a textile) can
also be protected. Some stylized trade marks, logos and shape marks could
also be registered as designs, as can fonts.
The Design Registers can usually be searched by those who wish to use a
design, and want to ensure that they do not infringe the rights of others.
Registration can therefore act as a good deterrent. As registration is
usually quick and relatively inexpensive, it is readily available to even
small and medium-sized businesses, where other forms of Intellectual
Property protection may be too costly. |
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What is a geographical indication? |
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What is the difference between a trademark and a company name? |
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Can you claim a right to a domain name? |
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What is a Well-Known Mark? |
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Parallel Imports |
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Sometimes traders import or export goods of a particular brand or affixed
with a particular trade mark to a market which is outside the contractual
distribution channel. Such acts are done without the licence of the trade
mark owner. The reasons for this could be many, including the
non-availability of a particular line of goods in the local market, or the
difference in price, composition or constitution of goods available in
another market.
Such parallel imports are not in the strict sense a misrepresentation as to
the origin of the goods as such goods are original goods manufactured or
licensed for manufacture by the owner of the relevant trade mark.
There is no one or consistent approach taken by most jurisdictions on the
issue of parallel importation. While some jurisdictions may consider
parallel importation of goods to be an unfair trade practice, and some other
jurisdictions having legislation regulating such activities, it is generally
the case that parallel importation is not generally considered acts of trade
mark infringement or passing-off.
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