|What is a Trade Mark?|
|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 Marks 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.
|How do you obtain a right to a Trade Mark?|
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
The majority of countries have legal systems requiring that a Trade Mark is registered in a specific Trade Mark register. Or that at least an application for registration of the Trade Mark 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.
|What is a patent?|
|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.|
|How do you obtain a patent?|
for a Patent must be made to the Patents Office accompanied by a
Patent Specification. A Patent Specification must contain a
description of the invention, one or more claims, and any
drawings which are referred to in the description to illustrate
the invention. The Patents Office grants a Patent for an
invention, which it finds is an advance on the state of the art
(novel) and is not an obvious development.
Under a Treaty known as the Paris Convention, an Applicant can within 12 months, seek Patent protection in another member country and claim priority back to the date on which the first application was filed.
|What is copyright?|
|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
|How do you obtain a right to and what is covered by copyright?|
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;
A copyright protects the way an idea is expressed in a piece of work, but it does not protect the idea itself.
|What is an industrial design?|
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
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.
|What is a geographical indication?|
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.
|What is the difference between a trade mark and a company name?|
|A Trade Mark is a distinguishing trade sign intended to differentiate the goods and/or the services of a given entity from the ones of another entity; the Establishment Name is a sign used to differentiate the physical location where a commercial activity is rendered whereas the company name is the designation attributed to the company upon its incorporation and must indicate the type of financial involvement of the partners.|
|Can you claim a right to a domain name?|
jurisdictions recognize that a domain name may function as a
trade mark and one may claim exclusive rights in a domain name
in those jurisdictions. Other jurisdictions do not recognize
this right. Entities entrusted with the registration of domain
names have a dispute resolution policy that affords a means of
resolving conflicts between trade marks and domain names.
There are jurisdictions that do no explicitly contemplate the resolution of conflicts between marks and domain names or the claiming of rights over domain names. In case some of the limiting rules of the domain name registration set by the entities that are entrusted with the responsibility of registering and managing them within each jurisdiction, are disregarded, the prejudiced party may file an action in court against the owner of the domain in order to prevent its use.
|What is a Well-Known-Mark?|
are marks generally acknowledged to be marks which have a high
degree of recognition and reputation in the areas of trade of
the proprietors of such marks, and in many cases beyond the
areas of trade of the proprietors of such marks.
Well-known marks are critical business assets which can be used and traded just like any other assets. As such, these critical business assets deserve the fullest and widest possible protection in order that mark owners may fully exploit the value of such well-known marks.
This need for specific protection for well-known marks is recognised in various international obligations which set out the principles for the protection of well-known marks, with individual countries setting out the extent of which such rights are to be protected.
Whether a mark is well-known is a factual question. The factors to consider in determining whether a mark is well-known generally falls within the following scope:-
Protection for well-known marks is not confined to use of similar marks used for goods or services identical or similar to those of the owner of the well-known mark, but also to use in relation to goods or services which are not identical or similar to those of the owner of the well-known mark if such use would indicate a connection exists between such goods or services and the owner of the well-known mark.
While many countries recognise unregistered well-known marks, it is however advisable to seek registration of well-known marks, taking into account that there may be extended forms of protection for registered well-known marks in certain countries.
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
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.