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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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What is a patent? |
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How do you obtain a patent? |
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What is copyright?
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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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What is a geographical indication? |
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A geographical indication is usually a place name giving the origin of the
goods to which it is applied. These goods usually have a quality which can
only be obtained if they are produced in the specified place, for example,
because of the climate, or local soil conditions, or quality of the water.
Geographical indications are mostly used in relation to agricultural
products, but may also be applied to other products which rely on human or
other factors.
This is a fairly recent form of intellectual property protection, which was
introduced to protect the public from deception, whether deliberate or
otherwise. It means, for example, that if you buy Scotch whisky, you know
that it is made in Scotland, and it not a product made in the same way as
Scotch whisky, but elsewhere (eg in Japan).
In order to have a name recognized as a geographical indication, the place
needs to have acquired a reputation for a particular type of product and a
quality or qualities associated with it. A geographical indication therefore
helps to protect and enhance that reputation.
A geographical indication is not generally owned by one particular trader
and so does not function in the same way as a trade mark (i.e. to
distinguish the goods or services of one trader from those of others). It
can be used by anyone who meets the set criteria.
Geographical indications are protected by International Treaties, and
signatories of these treaties then incorporate protection into their own
national laws, either by amendment of existing laws, or the creation of new
ones. Geographical indications are therefore ultimately enforced under
national law.
Some place names have, however, become synonymous with particular styles of
product, regardless of where they are produced, for example Dijon for
mustard, and Cheddar for cheese, and so are not protected as Geographical
Indications. |
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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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