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Trademark

See also Brand

A trademark (or, as referred to in Commonwealth countries, a "trade mark") is a distinctive name, phrase, symbol, design, picture, or style used by a business to identify itself to consumers. If the business identified is a service rather than a product, the mark is called a service mark. In text and advertising one often sees the symbol next to a phrase or image that a company thereby claims as a trademark, or the symbol ®, which signifies that the trademark or servicemark has been registered with the United States Patent and Trademark Office (USPTO) or a trademark registry in another country. Trademarking is a central legal component for corporate branding. In many countries colours (such as the colour orange for champagne and the colour brown for parcel delivery), three-dimensional marks, smells and sounds are also capable of trademark protection.

The basic policy of trademark law is to prevent the public from being deceived and allow the producer of a product to have a specific product associated with a specific manufacturer thereby preventing dilution of the owner's mark. From an economic point of view, a trademark is a symbol that allows a purchaser to identify goods or services that he is considering purchasing. By identifying the source of goods or services, marks help consumers to identify their expected quality and assist in identifying goods and services that meet the individual consumerís expectations. Trademarks also fix responsibility. Without marks, a sellerís mistakes or low quality products would be untraceable to their source. Therefore, trademarks provide an incentive to maintain a good reputation for a predictable quality of goods. For example, if a consumer likes Nabisco saltines, nothing else will suffice. A consumer has a reasonable expectation that Nabisco saltines purchased anywhere in the United States will be of uniform taste and quality.

Another underlying purpose of trademark law is protecting the ownerís investment in the quality of the goods or services sold under the mark known as dilution. Therefore, trademark law protects businesses from unfair competition and deceptive advertising by their competitors which can dilute the distinctiveness of a mark. For example, a company other than the Atlanta-based Coca-Cola Corporation that sold a soft drink called "Coke" in red and white cans would clearly be guilty of trademark infringement, confusing consumers as to the source of the product (though such confusion need not be intentional to be infringing). On the other hand, a company selling the carbonized coal byproduct called "coke" to steel mills would not likely be guilty of infringement, because there is little chance any consumer will mistake the two. The Atlanta company "owns" (in the intellectual property sense) not the word or design itself, but the exclusive right to use it to identify a particular product or service. A similar concept has developed in trademark law called trade dress where the look and feel of a product is taken into consideration when determining if infringement has taken place.

"Coke" itself (amongst many other brands) is a "well-known mark" as defined in TRIPs (discussed further below), and entitled to additional forms of protection in various jurisdictions because of its fame and the extent of public recognition. This secondary meaning affords the mark holder additional protection under U.S. law such as preventing someone from using the mark Coca-Cola on some other product such as clothing without the permission of the holder.

Unlike other forms of intellectual property such as copyrights and patents, trademarks must be actively used and defended. A copyright or patent holder may "sit on" his creation and prevent its use, but a company claiming (even registering) a trademark that fails to make active use of it, or fails to defend it against infringement, may lose the exclusive right to it. Further, if a court rules that a formerly trademarked term has become "generic" through common use (and so the average consumer doesn't realize it is a trademark), it may also be ruled invalid. For example, the Bayer company's trademark "Aspirin" has been ruled generic in the United States, so other companies may use that name for their products as well. (It is still a trademark in Canada.) Trademarks do not expire; they are valid as long as they are actively in use. However, a trademark registration will expire if the owner of the registration fails to comply with the requirements of the USPTO for maintaining and renewing the registration.

Other types of trademarks include:

  • Collective marks, which are owned by an organisation whose members use them to identify themselves with a level of quality, accuracy or geographical origin or other requirements set by the association. Examples of such associations include the representative bodies for accountants, engineers, architects and other professions or trades.

  • Certification marks are given for compliance with defined standards, but are not confined to any membership. They may be granted to anyone who can certify that the products involved meet certain established standards. The internationally accepted "ISO 9000" or "Bureau Veritas" quality standards is an example of such globally-recognized certifications. The "Woolmark" is another example: the mark certifies the level of quality of wool in a suit or other garment.

  • Smell trademarks

  • Three-dimensional trademarks

Trademark laws vary from country to country.

Trademark laws of various countries:

As a result of the WTO (formerly GATT) Trade Related Intellectual Property ("TRIPS") agreement, trademark law globally is gradually becoming harmonised. This does not mean that trademarks registered in one jurisdiction automatically become registered in another jurisdiction (although such a system is in place in the European Union), but it does mean that many trademark laws are shared by various countries. For example, Art 15 of the TRIPs agreement defines "sign". This definition or variations thereof can be found in a variety of countries' trademark legislation.

The Madrid Agreement allows trademarks registered in one country to be registered in other countries and territories.

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