trademark

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trademark

n. a distinctive design, picture, emblem, logo or wording (or combination) affixed to goods for sale to identify the manufacturer as the source of the product and to distinguish them from goods sold or made by others. Words that merely name the maker (but without particular lettering) or a generic name for the product are not trademarks. While a trade mark may exist from its first use, it is wise to register a trademark with the U. S. Patent and Trade Mark Office to prove its use and ownership, or register it with the Secretary of State in a state for products not in interstate commerce (such as a restaurant). Federal trademarks last as long as they are used and there are up-dated re-registrations. "Use" means placing the mark on a regular basis on goods manufactured and/or sold, and not abandoning the trademark by not placing it on new goods made or sold. Patent law specialists can conduct a search for similar trademarks to avoid the costs of wasting time and money on adopting an existing trademark owned by another. Use of another's trademark (or one that is confusingly similar) is infringement and the basis for a lawsuit for damages for unfair competition and/or a petition for an injunction against the use of the infringing trademark. (See: trade name, service mark, infringement, copyright, unfair competition)

Copyright © 1981-2005 by Gerald N. Hill and Kathleen T. Hill. All Right reserved.

trademark

a sign which denotes the origin and indicates the quality of a product or service and which is, as a signifier of the corresponding trade reputation, protected by trademark law. Nowadays, trademarks fulfil increasingly an advertising and differentiation function, whereby the indication of origin becomes less important. Trademarks can be registered (‘(r)’) or unregistered. Unregistered trade marks are protected by PASSING OFF. The Trademarks Act 1994 applies to registered trademarks.

For the registration of a mark in the trademark register, the mark must be a sign, capable of graphical representation (so that it may be entered on the register) and capable of distinguishing the applicant's goods or services from those of other undertakings (enterprises). A sign can consist of words (also personal names), letters, designs (and combinations of all these), the shape of goods (three-dimensional mark), in principle colours or colour combinations and everything else which is capable of being represented graphically. Thus a musical notation for the graphical representation of sounds suffices (sound mark), but a chemical formula for a taste or smell does not. If no absolute grounds or relative grounds for refusal of registration apply, a trademark will be registered for the class(es) of goods and/or services as requested by the applicant.

Absolute grounds for refusal of registration concern objections inherent in the sign itself, either because it is not:

  1. (i) a sign capable of graphical representation;
  2. (ii) not distinctive (e.g. a common surname);
  3. (iii) wholly descriptive (e.g. the mark ‘purple’ for paint), or:
  4. (iv) generic (‘Aspirin’).

The obstacles of (ii)-(iv) can be overcome if the applicant can show that the sign has already acquired distinctiveness through use. Refusal of registration on a relative ground occurs where the sign is in principle registrable but conflicts with an earlier mark which is identical or confusingly similar and for the same or similar goods or services, whereby this earlier mark has already been registered, or at least applied for earlier (earlier date of priority), provided the earlier mark will have become registered later. If a trademark has been registered despite one of these absolute or relative grounds, anyone can apply for a declaration of invalidity of the registration.

The relative grounds for refusal of registration mirror the types of trademark infringement: the successful applicant and subsequent owner of the registered trademark (which he can also transfer or assign or license) can resist any use, in the course of trade, of a sign which is identical or confusingly similar to his own trademark in relation to the same or similar goods or services for which his trademark is registered. The classes of registration in the trademark register give an indicator as to the similarity of the goods or services in question, but are not decisive.

Furthermore, in certain cases trademarks with a reputation in the UK are protected also in relation to dissimilar goods/services and therefore beyond the classes for which they are registered. The defences in a trademark infringement action include the use of one's own name or address if that complies with honest commercial/industrial practices, or the use of the mark for advertising the trademarked goods or services in relation to them (spare parts supply etc.). A registered trademark can be revoked if it has not been used for an uninterrupted five-year period for no good reason. Otherwise a trademark must be renewed every 10 years and, in this way, it can remain valid for an indefinite period. It is also possible to register a European Community Trademark at the Office for Harmonization in the Internal Market (Alicante) which gives protection in all European Union Member States. The Community trademark system corresponds generally to that in the UK, but there are differences, especially in the application procedure.

Collins Dictionary of Law © W.J. Stewart, 2006
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