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What Is Trademark

A Trademark is the means by which a business makes itself visible in the marketplace.

Tina S
Tina S
Jan 31, 2010
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What is Trademark?



A trademark is a word, symbol, or phrase, used to identify a particular manufacturer or seller's products and distinguish them from the products of another.

A trademark is one of three legal terms used to describe “intellectual property,” the others being patent and copyright. A trademark is denoted by the trademark symbol, which is ™, or alternatively by the federal registration symbol, which is ®, if an actual registration filing has been approved by the United States Patent and Trademark Office (USPTO).

For example, the trademark "Nike," along with the Nike "swoosh," identify the shoes made by Nike and distinguish them from shoes made by other companies (e.g. Reebok or Adidas).

Similarly, the trademark "Coca-Cola" distinguishes the brown-colored soda water of one particular manufacturer from the brown-colored soda of another (e.g. Pepsi).

When such marks are used to identify services (e.g. "Jiffy Lube") rather than products, they are called service marks, although they are generally treated just the same as trademarks.

A mark is not eligible to be registered if it is:

(a) immoral, deceptive or scandalous matter,

(b) flag of coat of arms or other insignia of the United States, or of any state, municipality, or foreign nation,

(c) a name, portrait, or signature identifying a particular living individual except with that individual's written consent, or the name, signature or portrait of a deceased President of the United States during the life of the President's spouse, except with the spouse’s written consent,

(d) a mark that resembles one already registered that is likely to cause confusion, mistake or deception,

(e) a mark that is merely descriptive, or a deceptive mis-description, of goods, or primarily a geographical description or deceptive geographical mis-description of goods, or a surname - unless the mark has become distinctive of the applicant's goods in commerce.

A service mark, denoted by the symbol SM, offers virtually the same protection as a trademark, but is used instead to identify and distinguish services, rather than products. When the term “trademark” or “mark” is used, it is understood to include service mark as well. Trademarks are usually synonymous with the brand name or design that is applied to a business or its products or used in connection with services.

Whereas patents and copyrights are basically used to protect the commercial rights of inventors and creators of artistic or literary works, respectively, the basic concept behind a trademark or service mark is to prevent unfair competition.

Trademark Rights:

The law considers a trademark to be a form of property. Proprietary rights in relation to a trademark may be established through actual use in the marketplace, or through registration of the mark with the trademarks office (or "trademarks registry") of a particular jurisdiction. In some jurisdictions, trademark rights can be established through either or both means. Certain jurisdictions generally do not recognize trademarks rights arising through use. In the United States the only way to qualify for a federally registered trademark is to first use the trademark in commerce.
 
If trademark owners do not hold registrations for their marks in such jurisdictions, the extent to which they will be able to enforce their rights through trademark infringement proceedings will therefore be limited. In cases of dispute, this disparity of rights is often referred to as "first to file" as opposed to "first to use." Other countries such as Germany offer a limited amount of common law rights for unregistered marks where to gain protection, the goods or services must occupy a highly significant position in the marketplace - where this could be 40% or more market share for sales in the particular class of goods or services.

A registered trademark confers a bundle of exclusive rights upon the registered owner, including the right to exclusive use of the mark in relation to the products or services for which it is registered. The law in most jurisdictions also allows the owner of a registered trademark to prevent unauthorized use of the mark in relation to products or services which are identical or "colourfully" similar to the "registered" products or services, and in certain cases, prevent use in relation to entirely dissimilar products or services. The test is always whether a consumer of the goods or services will be confused as to the identity of the source or origin.
 
An example may be a very large multinational brand such as "Sony" where a non-electronic product such as a pair of sunglasses might be assumed to have come from Sony Corporation of Japan despite not being a class of goods that Sony has rights in.

Once trademark rights are established in a particular jurisdiction, these rights are generally only enforceable in that jurisdiction, a quality which is sometimes known as territoriality. However, there is a range of international trademark laws and systems which facilitate the protection of trademarks in more than one jurisdiction.

Companies and individuals who have registered a trademark will pursue many legal avenues to protect it. Courts must decide if the unauthorized use of a trademarked slogan or product by others has caused actual damage in the marketplace. A local restaurant featuring fried chicken, for example, cannot use the image of an elderly man in a white suit as its official logo.
 
This would create confusion with the registered trademark of Colonel Sanders owned by Kentucky Fried Chicken. But it would be legal for the local restaurant to say 'If Mr. Sanders ate here, he'd be a General.' Kentucky Fried Chicken's registered trademark does not protect individual words, just the entire phrase or symbol


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