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A trademark (also written trade mark or trade-mark) is a type of
intellectual property Intellectual property (IP) is a category of property Property is a system of rights that gives people legal control of valuable things, and also refers to the valuable things themselves. Depending on the nature of the property, an owner of ...
consisting of a recognizable
sign A sign is an object Object may refer to: General meanings * Object (philosophy), a thing, being, or concept ** Entity, something that is tangible and within the grasp of the senses ** Object (abstract), an object which does not exist at ...
,
design A design is a plan or specification for the construction of an object or system or for the implementation of an activity or process, or the result of that plan or specification in the form of a prototype, product or process. The verb ''to design' ...

design
, or expression which identifies
products Product may refer to: Business * Product (business), an item that serves as a solution to a specific consumer problem. * Product (project management), a deliverable or set of deliverables that contribute to a business solution Mathematics * Produc ...
or
services Service may refer to: Activities :''(See the Religion section for religious activities)'' * Administrative service, a required part of the workload of Faculty (academic staff), university faculty * Civil service, the body of employees of a governm ...
of a particular source from those of others. The trademark owner can be an individual, business organization, or any
legal entity In law Law is a system A system is a group of Interaction, interacting or interrelated elements that act according to a set of rules to form a unified whole. A system, surrounded and influenced by its environment, is described by it ...
. A trademark may be located on a package, a
label A label (as distinct from signage) is a piece of paper, plastic film, cloth, metal, or other material affixed to a Packaging and labelling, container or Product (business), product, on which is written or printing, printed information or symbo ...

label
, a
voucher A voucher is a bond of the redeemable transaction type which is worth a certain monetary value and which may be spent only for specific reasons or on specific goods. Examples include housing Housing, or more generally living spaces, refers to ...

voucher
, or on the product itself. Trademarks used to identify services are sometimes called
service mark A service mark or servicemark is a trademark A trademark (also written trade mark or trade-mark) is a type of intellectual property Intellectual property (IP) is a category of property that includes intangible creations of the human ...

service mark
s. The first
legislative A legislature is an assembly Assembly may refer to: Organisations and meetings * Deliberative assembly A deliberative assembly is a gathering of members (of any kind of collective) who use parliamentary procedure Parliamentary procedure ...
act concerning trademarks was passed in 1266 under the reign of
Henry IIIHenry III may refer to: * Henry III, Duke of Bavaria (940–989) * Henry III, Holy Roman Emperor (1017–1056) * Henry III, Count of Louvain (died 1095) * Henry III, Count of Luxembourg (died 1096) * Henry III, Duke of Carinthia (1050–1122) * Henr ...

Henry III
, requiring all bakers to use a distinctive mark for the bread they sold. The first modern trademark laws emerged in the late 19th century. In
France France (), officially the French Republic (french: link=no, République française), is a List of transcontinental countries, transcontinental country spanning Western Europe and Overseas France, overseas regions and territories in the Ame ...

France
, the first comprehensive trademark system in the world was passed into law in 1857. The
Trade Marks Act 1938 The Trade Marks Act 1994 is the law governing trade marks within the United Kingdom The United Kingdom of Great Britain and Northern Ireland, commonly known as the United Kingdom (UK) or Britain,Usage is mixed. The Guardian' and Telegraph' u ...
of the
United Kingdom The United Kingdom of Great Britain and Northern Ireland, commonly known as the United Kingdom (UK) or Britain,Usage is mixed. The Guardian' and Telegraph' use Britain as a synonym for the United Kingdom. Some prefer to use Britain as shorth ...

United Kingdom
changed the system, permitting registration based on "intent-to-use”, creating an examination based process, and creating an application publication system. The 1938 Act, which served as a model for similar legislation elsewhere, contained other novel concepts such as "associated trademarks", a consent to use the system, a defensive mark system, and a non claiming right system. The symbols ™ (the
trademark symbol The trademark symbol is a symbol A symbol is a mark, sign, or word In linguistics, a word of a spoken language can be defined as the smallest sequence of phonemes that can be uttered in isolation with semantic, objective or pragmatics ...
) and ® (the
registered trademark symbol The registered trademark symbol, , is a typographic symbol This is a list of the most common typographical symbols and punctuation marks used in western European languages. For a far more comprehensive list of symbols and signs, see List of ...

registered trademark symbol
) can be used to indicate trademarks; the latter is only for use by the owner of a trademark that has been registered.


Usage

A trademark identifies the
brand A brand is a name, term, design, symbol or any other feature that identifies one seller's good or service as distinct from those of other sellers. Brands are used in business, marketing, and advertising for recognition and, importantly, to cre ...

brand
owner of a particular product or service. Trademarks can be used by others under licensing agreements; for example,
Bullyland Bullyland AG is a German–based manufacturing company founded in 1973 and based in Spraitbach, known worldwide as a manufacturer of hand-painted collectors' models and figurines. Bullyland has offices in New York City and Hong Kong, its own product ...
obtained a license to produce
Smurf ''The Smurfs'' (french: Les Schtroumpfs; nl, De Smurfen) is a Belgian comic franchise centered on a fictional colony of small, blue, humanoid creatures who live in mushroom-shaped houses in the forest. ''The Smurfs'' was first created and int ...
figurines;
the Lego Group Lego A/S (trade name A trade name, trading name, or business name is a pseudonym used by companies that do not operate under their registered company name. The term for this type of alternative name is a "fictitious" business name. Registerin ...
purchased a license from
Lucasfilm Lucasfilm Ltd. LLC is an American film and television and a subsidiary of , which is a business segment of . The studio is best known for creating and producing the ' and ' franchises, as well as its leadership in developing special effects, sou ...
to be allowed to launch
Lego Star Wars Lego ''Star Wars'' is a Lego theme that incorporates the ''Star Wars ''Star Wars'' is an American epic space opera media franchise created by George Lucas, which began with the eponymous 1977 film and quickly became a worldwide pop ...
;
TT Toys ToysTT Toys Toys SRL are an Italian manufacturer of children’s pedal and electric ride on cars. They have a factory near Milan and specialise in the manufacture of licensed replica cars for children. History Alberto Burratti, Luigi Vezzoli, Carlo Bose ...
is a manufacturer of licensed ride-on replica cars for children. The unauthorized usage of trademarks by producing and trading
counterfeit consumer goods Counterfeit consumer goods are goods, often of inferior quality, made or sold under another's brand name without the brand owner's authorization. Sellers of such goods may infringe on either the trademark, patent NPOV disputes from March 20 ...
is known as
brand piracyBrand piracy is the act of naming a Product (business), product in a manner which can result in confusion with other better known brands. According to author Robert Tönnis ''The term brand piracy is unauthorized usage of protected brand names, label ...
. The owner of a trademark may pursue
legal action In legal terminology, a complaint is any formal legal document that sets out the facts and legal reasons (see: cause of action) that the Filing (legal), filing party or parties (the plaintiff(s)) believes are sufficient to support a claim agai ...
against
trademark infringement Trademark infringement is a violation of the exclusive rights attached to a trademark without the authorization of the trademark owner or any licensees (provided that such authorization was within the scope of the licence). Infringement may occ ...
. Most countries require formal registration of a trademark as a precondition for pursuing this type of action. The United States, Canada, and other countries also recognize common law trademark rights, which means action can be taken to protect any unregistered trademark if it is in use. Still, common law trademarks offer to the holder, in general, less legal protection than registered trademarks.


Designation

A trademark may be designated by the following symbols: * (the "
trademark symbol The trademark symbol is a symbol A symbol is a mark, sign, or word In linguistics, a word of a spoken language can be defined as the smallest sequence of phonemes that can be uttered in isolation with semantic, objective or pragmatics ...
", which is the letters "TM" in superscript, for an
unregistered trademark An unregistered trademark or common law trademark A trademark (also written trade mark or trade-markThe styling of ''trademark'' as a single word is predominantly used in the United States and Philippines only, while the two-word styling ' ...
, a mark used to promote or brand goods) * (which is the letters "SM" in superscript, for an unregistered
service mark A service mark or servicemark is a trademark A trademark (also written trade mark or trade-mark) is a type of intellectual property Intellectual property (IP) is a category of property that includes intangible creations of the human ...

service mark
, a mark used to promote or brand services) * ® (the letter "R" surrounded by a circle, for a registered trademark)


Styles

A trademark is typically a name, word, phrase,
logo A logo (abbreviation of logotype; ) is a graphic Graphics () are visual The visual system comprises the sensory organ A sense is a biological system A biological system is a complex network which connects several biologically rel ...

logo
,
symbol A symbol is a mark, sign, or word In linguistics, a word of a spoken language can be defined as the smallest sequence of phonemes that can be uttered in isolation with semantic, objective or pragmatics, practical meaning (linguistics), m ...

symbol
,
design A design is a plan or specification for the construction of an object or system or for the implementation of an activity or process, or the result of that plan or specification in the form of a prototype, product or process. The verb ''to design' ...

design
, image, or a combination of these elements.Restatement (Third) of Unfair Competition § 9 (1995) There is also a range of non-conventional trademarks comprising marks which do not fall into these standard categories, such as those based on colour, smell, or sound (like
jingle A jingle is a short song or tune used in advertising Advertising is a marketing Marketing is the process of intentionally stimulating demand for and purchases of goods and services; potentially including selection of a target audience; ...
s). Trademarks that are considered offensive are often rejected according to a nation's trademark law. The term ''trademark'' is also used informally to refer to any distinguishing attribute by which an individual is readily identified, such as the well-known characteristics of celebrities. When a trademark is used about services rather than products, it may sometimes be called a
service mark A service mark or servicemark is a trademark A trademark (also written trade mark or trade-mark) is a type of intellectual property Intellectual property (IP) is a category of property that includes intangible creations of the human ...

service mark
, particularly in the
United States The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country Continental United States, primarily located in North America. It consists of 50 U.S. state, states, a Washington, D.C., ...
.


Fundamental concepts

The essential function of a trademark is to exclusively identify the source or origin of products or services, so a trademark, properly called, indicates the source or serves as a badge of origin. In other words, trademarks serve to identify a particular entity as the source of goods or services. The use of a trademark in this way is known as trademark use. Certain
exclusive right In Anglo-Saxon law, an exclusive right, or exclusivity, is a de facto, non-tangible prerogative existing in law (that is, the power (sociology), power or, in a wider sense, right) to perform an action or acquire a benefit and to permit or deny oth ...
s attach to a registered mark. Trademarks are used not only by businesses but also by noncommercial organizations and religions to protect their
identity Identity may refer to: Social sciences * Identity (social science), personhood or group affiliation in psychology and sociology Group expression and affiliation * Cultural identity, a person's self-affiliation (or categorization by others ...
and goodwill associated with their name. Trademark rights generally arise out of the use of, or to maintain exclusive rights over, that sign about certain products or services, assuming there are no other trademark objections. Different goods and services have been classified by the
International (Nice) Classification of Goods and ServicesInternational Classification of Goods and Services also known as the Nice Nice (, ; ; Nissard oc, Niça, classical norm, or ', nonstandard, ; it, Nizza ; el, Νίκαια; la, Nicaea) is the Urban area (France)#List of France's aires urbaines ...
into 45
Trademark ClassesInternational Classification of Goods and Services also known as the Nice Nice ( , ; Niçard: , classical norm, or , nonstandard, ; it, Nizza ; grc, Νίκαια; la, Nicaea) is the seventh most populous urban area in France France ( ...
(1 to 34 cover goods, and 35 to 45 cover services). The idea behind this system is to specify and limit the extension of the intellectual property right by determining which goods or services are covered by the mark, and to unify classification systems around the world.


History

In trademark treatises it is usually reported that
blacksmiths A blacksmith is a metalsmith A metalsmith or simply smith is a craftsperson fashioning useful items (for example, tools, kitchenware, tableware, jewellery, and weapons) out of various metal A metal (from Ancient Greek, Greek μέτ ...
who made
sword A sword is an edged, bladed weapon intended for manual cutting or thrusting. Its blade, longer than a knife A knife (plural knives; from Old Norse Old Norse, Old Nordic, or Old Scandinavian is a stage of development of North Ge ...

sword
s in the
Roman Empire The Roman Empire ( la, Imperium Rōmānum ; grc-gre, Βασιλεία τῶν Ῥωμαίων, Basileía tôn Rhōmaíōn) was the post-Republican Republican can refer to: Political ideology * An advocate of a republic, a type of governme ...

Roman Empire
are thought of as being the first users of trademarks. Other notable trademarks that have been used for a long time include
Stella Artois Stella Artois ( ) is a pilsner Pilsner (also pilsener or simply pils) is a type of pale lager. It takes its name from the Bohemia Bohemia ( ; cs, Čechy ; ; hsb, Čěska; szl, Czechy) is the westernmost and largest historical regio ...

Stella Artois
, which claims use of its mark since 1366, and Löwenbräu, which claims use of its lion mark since 1383. The first trademark legislation was passed by the
Parliament of England The Parliament of England was the legislature A legislature is an assembly Assembly may refer to: Organisations and meetings * Deliberative assembly A deliberative assembly is a gathering of members (of any kind of collective) who u ...
under the reign of King
Henry IIIHenry III may refer to: * Henry III, Duke of Bavaria (940–989) * Henry III, Holy Roman Emperor (1017–1056) * Henry III, Count of Louvain (died 1095) * Henry III, Count of Luxembourg (died 1096) * Henry III, Duke of Carinthia (1050–1122) * Henr ...

Henry III
in 1266, which required all bakers to use a distinctive mark for the bread they sold. The first modern trademark laws emerged in the late 19th century. In France, the first comprehensive trademark system in the world was passed into law in 1857 with the "Manufacture and Goods Mark Act". In Britain, the Merchandise Marks Act 1862 made it a criminal offense to imitate another's trade mark 'with intent to defraud or to enable another to defraud'. In 1875, the Trade Marks Registration Act was passed which allowed formal registration of trademarks at the UK Patent Office for the first time. Registration was considered to comprise ''
prima facie ''Prima facie'' (; ) is a Latin expression meaning ''at first sight'' or ''based on first impression''. The literal translation would be 'at first face' or 'at first appearance', from the feminine forms of ''primus'' ('first') and ''facies'' (' ...
'' evidence of ownership of a trademark and registration of marks began on 1 January 1876. The 1875 Act defined a registrable trade mark as a device or mark, or name of an individual or firm printed in some particular and distinctive manner; or a written signature or copy of a written signature of an individual or firm; or a distinctive label or ticket'.Bently, Lionel, "The Making of Modern Trade Marks Law: The Construction of the Legal Concept of Trade Mark (1860-80)" in Lionel Bently, Jane C. Ginsburg & Jennifer Davis (eds), ''Trade Marks and Brands: An Interdisciplinary Critique'' (Cambridge University Press, 2008) In the
United States The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country Continental United States, primarily located in North America. It consists of 50 U.S. state, states, a Washington, D.C., ...

United States
,
Congress Congresses are formal meetings of the representatives of different countries A country is a distinct territorial body or political entity A polity is an identifiable political entity—any group of people who have a collective identity, ...

Congress
first attempted to establish a federal trademark regime in 1870. This statute purported to be an exercise of Congress'
Copyright Clause The Copyright Clause (also known as the Intellectual Property Clause, Copyright and Patent Clause, or the Progress Clause) describes an enumerated power listed in the United States Constitution The Constitution of the United States is th ...
powers. However, the Supreme Court struck down the 1870 statute in the ''
Trade-Mark Cases The ''Trade-Mark Cases'', 100 U.S. 82 (1879), were a set of three cases consolidated into a single appeal before the United States Supreme Court, which in 1879 unanimously ruled that the Copyright Clause of the Constitution gave Congress no power t ...
'' later on in the decade. In 1881, Congress passed a new trademark act, this time according to its
Commerce Clause The Commerce Clause describes an listed in the (). The clause states that the shall have power " regulate with foreign Nations, and among the several States, and with the Indian Tribes." Courts and commentators have tended to discuss each of ...
powers. Congress revised the Trademark Act in 1905. The
Lanham Act The Lanham (Trademark) Act (, codified at et seq. () is the primary federal trademark A trademark (also written trade mark or trade-mark) is a type of intellectual property Intellectual property (IP) is a category of property ...
of 1946 updated the law and has served, with several amendments, as the primary federal law on trademarks. The
Trade Marks Act 1938 The Trade Marks Act 1994 is the law governing trade marks within the United Kingdom The United Kingdom of Great Britain and Northern Ireland, commonly known as the United Kingdom (UK) or Britain,Usage is mixed. The Guardian' and Telegraph' u ...
in the
United Kingdom The United Kingdom of Great Britain and Northern Ireland, commonly known as the United Kingdom (UK) or Britain,Usage is mixed. The Guardian' and Telegraph' use Britain as a synonym for the United Kingdom. Some prefer to use Britain as shorth ...

United Kingdom
set up the first registration system based on the “intent-to-use” principle. The Act also established an application publishing procedure and expanded the rights of the trademark holder to include the barring of trademark use even in cases where confusion remained unlikely. This Act served as a model for similar legislation elsewhere.


Oldest registered trademarks

The oldest registered trademark has various claimants, enumerated below: *
Australia Australia, officially the Commonwealth of Australia, is a Sovereign state, sovereign country comprising the mainland of the Australia (continent), Australian continent, the island of Tasmania, and numerous List of islands of Australia, sma ...

Australia
: Most significant companies were already using trademarks in the mid-nineteenth century and while Australia based its patent law on the British law system, the then province of
South Australia South Australia (abbreviated as SA) is a States and territories of Australia, state in the southern central part of Australia. It covers some of the most arid parts of the country. With a total land area of , it is the fourth-largest of Austral ...

South Australia
(1863), and colonies
Queensland Queensland ( ) is a state situated in northeastern Australia Australia, officially the Commonwealth of Australia, is a Sovereign state, sovereign country comprising the mainland of the Australia (continent), Australian continent, the ...

Queensland
and
Tasmania Tasmania (), abbreviated as TAS, is an island An island (or isle) is an isolated piece of habitat that is surrounded by a dramatically different habitat, such as water. Very small islands such as emergent land features on atol ...
(1864),
New South Wales New South Wales (abbreviated as NSW) is a state State may refer to: Arts, entertainment, and media Literature * ''State Magazine'', a monthly magazine published by the U.S. Department of State * The State (newspaper), ''The State'' (newspape ...
(1895)
Victoria Victoria most commonly refers to: * Victoria (Australia), a state of the Commonwealth of Australia * Victoria, British Columbia, provincial capital of British Columbia, Canada * Victoria (mythology), Roman goddess of Victory * Victoria, Seychelles ...
(1876) and
Western Australia Western Australia (abbreviated as WA) is a state State may refer to: Arts, entertainment, and media Literature * ''State Magazine'', a monthly magazine published by the U.S. Department of State * The State (newspaper), ''The State'' (newspape ...

Western Australia
(in 1885) had enacted laws to protect trademarks well before Britain did. Thus the
Bank of New South Wales The Bank of New South Wales (BNSW), also known commonly as The Wales, was the first bank in Australia, being established in Sydney in 1817 and situated on Broadway, New South Wales, Broadway. During the 19th century, the bank opened branches ...

Bank of New South Wales
had registered its coat of arms in c.1850 and firms such as Tasmanian Jam and Preserved Fruit Co. had a trademark in 1878, when, after the
Federation of Australia The Federation of Australia was the process by which the six separate British self-governing colonies In the British Empire, a self-governing colony was a colony In political science, a colony is a territory subject to a form of fo ...
, the Commonwealth Trademarks Register was introduced on 2 July 1906 and the Trade Marks Office opened in Melbourne, on which date more than 750 applications were lodged. A product for treatment for coughs colds and bronchitis, PEPS, 'a wonderful breathing medicine in soluble tablet form', was the first of these federal trademarks, registered by Charles Edward Fulford; a rounded rectangle designed for the top of a tin. The shape contained the word 'PEPs' along with a descriptive blurb that read 'for coughs, colds & bronchitis.' *
United Kingdom The United Kingdom of Great Britain and Northern Ireland, commonly known as the United Kingdom (UK) or Britain,Usage is mixed. The Guardian' and Telegraph' use Britain as a synonym for the United Kingdom. Some prefer to use Britain as shorth ...

United Kingdom
: 1876 – The
Bass Brewery The Bass Brewery was founded in 1777 by William Bass in Burton-upon-Trent Burton upon Trent, also known as Burton-on-Trent or simply Burton, is a market town in Staffordshire, England, close to the border with Derbyshire. In United Kingdom ...
's label incorporating its triangle logo for
ale Ale is a type Type may refer to: Science and technology Computing * Typing, producing text via a keyboard, typewriter, etc. * Data type, collection of values used for computations. * File type * TYPE (DOS command), a command to display contents ...

ale
was the first trademark to be registered under the Trade Mark Registration Act 1875., United Kingdom Intellectual Property Office. *
United States The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country Continental United States, primarily located in North America. It consists of 50 U.S. state, states, a Washington, D.C., ...

United States
: there are at least two claims: ** A design mark with an eagle and a ribbon and the words "Economical, Beautiful, and Durable" was the first registered trademark, filed by the Averill Chemical Paint Company on August 30, 1870 under the Trademark Act of 1870. However, in the ''
Trade-Mark Cases The ''Trade-Mark Cases'', 100 U.S. 82 (1879), were a set of three cases consolidated into a single appeal before the United States Supreme Court, which in 1879 unanimously ruled that the Copyright Clause of the Constitution gave Congress no power t ...
'', , the U.S. Supreme Court held the 1870 Act to be unconstitutional. ** The oldest U.S. registered trademark still in use is trademark reg. no 11210, a depiction of the Biblical figure
Samson In the Hebrew Bible The Hebrew Bible or Tanakh (; Hebrew: , or ), is the Biblical canon, canonical collection of Hebrew language, Hebrew scriptures, including the Torah, the Nevi'im, and the Ketuvim. These texts are almost exclusively i ...

Samson
wrestling a lion, registered in the United States on May 27, 1884 by the J.P. Tolman Company (now Samson Rope Technologies, Inc.), a
rope A rope is a group of yarns, Plying, plies, fibers or strands that are twisted or braided together into a larger and stronger form. Ropes have tensile strength and so can be used for dragging and lifting. Rope is thicker and stronger than simil ...

rope
-making company. *
Germany ) , image_map = , map_caption = , map_width = 250px , capital = Berlin Berlin (; ) is the Capital city, capital and List of cities in Germany by population, largest city of Germany by both area and population. Its 3,769,495 inh ...

Germany
: 1875 – The
Krupp The Krupp family (see pronunciation Pronunciation is the way in which a word or a language A language is a structured system of communication Communication (from Latin ''communicare'', meaning "to share" or "to be in relation w ...
steel company registered three seamless train wheel tires, which are put on top of each other, as its label in 1875, under the German Trade Mark Protection Law of 1874. The seamless train wheel tire did not break, unlike iron tires with seams, and was patented by Krupp in Prussia in 1853.


Symbols

The two symbols associated with trademarks, ™ (the
trademark symbol The trademark symbol is a symbol A symbol is a mark, sign, or word In linguistics, a word of a spoken language can be defined as the smallest sequence of phonemes that can be uttered in isolation with semantic, objective or pragmatics ...
) and ® (the
registered trademark symbol The registered trademark symbol, , is a typographic symbol This is a list of the most common typographical symbols and punctuation marks used in western European languages. For a far more comprehensive list of symbols and signs, see List of ...

registered trademark symbol
), represent the status of a mark and accordingly its level of protection. While ™ can be used with any common law usage of a mark, ® may only be used by the owner of a mark following registration with the relevant national authority, such as the U.S. Patent and Trademark Office (USPTO or PTO). The proper manner to display either symbol is immediately following the mark in superscript style.


Terminology

Terms such as "mark", "
brand A brand is a name, term, design, symbol or any other feature that identifies one seller's good or service as distinct from those of other sellers. Brands are used in business, marketing, and advertising for recognition and, importantly, to cre ...

brand
" and "
logo A logo (abbreviation of logotype; ) is a graphic Graphics () are visual The visual system comprises the sensory organ A sense is a biological system A biological system is a complex network which connects several biologically rel ...

logo
" are sometimes used interchangeably with "trademark". "Trademark", however, also includes any device, brand, label, name, signature, word, letter, numerical, shape of goods, packaging, color or combination of colors, smell, sound, movement or any combination thereof which is capable of distinguishing goods and services of one business from those of others. It must be capable of graphical representation and must be applied to goods or services for which it is registered. Specialized types of trademark include
certification mark A certification mark (or conformity mark) on a commercial product indicates the existence of an accepted product standard Standard may refer to: Flags * Colours, standards and guidons * Standard (flag), a type of flag used for personal ide ...
s, collective trademarks and defensive trademarks. A trademark that is popularly used to describe a product or service (rather than to distinguish the product or services from those of third parties) is sometimes known as a
genericized trademark A generic trademark, also known as a genericized trademark or proprietary eponym, is a trademark or brand name that, because of its popularity or significance, has become the generic term for, or synonymous with, a general class of Good (economic ...
. If such a mark becomes
synonym A synonym is a word, morpheme A morpheme is the smallest meaningful lexical item in a language. A morpheme is not a word. The difference between a morpheme and a word is that a morpheme bound and free morphemes, sometimes does not stand alone ...
ous with that product or service to the extent that the trademark owner can no longer enforce its proprietary rights, the mark becomes generic. A "
trademark lookTrademark look or signature look is the characteristic clothes or other distinguishing signs used by a certain character or performer, making the person more recognizable by the audience. Politicians may also have trademark signs, such as the suit ...
" is an informal term for a characteristic look for a performer or character of some sort. It is usually not legally trademark protected and the term is not used in the trademark law.


Registration

Some law considers a trademark to be a form of
property Property is a system of rights that gives people legal control of valuable things, and also refers to the valuable things themselves. Depending on the nature of the property, an owner of property may have the right to consume, alter, share, r ...
.
Proprietary {{Short pages monitor A trademark is ''diluted'' when the use of similar or identical trademarks in other non-competing markets means that the trademark in and of itself will lose its capacity to signify a single source. In other words, unlike ordinary trademark law, dilution protection extends to trademark uses that do not confuse consumers regarding who has made a product. Instead, dilution protection law aims to protect sufficiently strong trademarks from losing their singular association in the public mind with a particular product, perhaps imagined if the trademark were to be encountered independently of any product (e.g., just the word Pepsi spoken, or on a billboard). Under trademark law, dilution occurs either when unauthorized use of a mark "blurs" the "distinctive nature of the mark" or "tarnishes it." Likelihood of confusion is not required. 15 U.S.C §§ 1127, 1125(c).


Sale, transfer and licensing

In various jurisdictions, a trademark may be sold with or without the underlying goodwill which subsists in the business associated with the mark. However, this is not the case in the United States, where the courts have held that this would "be a fraud upon the public". In the U.S., trademark registration can therefore only be sold and assigned if accompanied by the sale of an underlying asset. Examples of assets whose sale would ordinarily support the assignment of a mark include the sale of the machinery used to produce the goods that bear the mark or the sale of the corporation (or subsidiary) that produces the trademarked goods.


Licensing

Licensing means the trademark owner (the licensor) grants a permit to a third party (the licensee) to commercially use the trademark legally. It is a contract between the two, containing the scope of content and policy. The essential provisions to a trademark license identify the trademark owner and the licensee, in addition to the policy and the goods or services agreed to be licensed. Most jurisdictions provide for the use of trademarks to be licensed to third parties. The licensor must monitor the quality of the goods being produced by the licensee to avoid the risk of the trademark being deemed abandoned by the courts. A trademark license should therefore include appropriate provisions dealing with quality control, whereby the licensee provides warranties as to the quality and the licensor has rights to inspection and monitoring.


Domain names

The advent of the domain name system has led to attempts by trademark holders to enforce their rights over domain names that are similar or identical to their existing trademarks, particularly by seeking control over the domain names at issue. As with dilution protection, enforcing trademark rights over domain name owners involves protecting a trademark outside the obvious context of its consumer market, because domain names are global and not limited by goods or service. This conflict is easily resolved when the domain name owner actually uses the domain to compete with the trademark owner. Cybersquatting, however, does not involve competition. Instead, an unlicensed user registers a domain name identical to a trademark and offers to sell the domain to the trademark owner. Typosquatting, Typosquatters—those registering common misspellings of trademarks as domain names—have also been targeted successfully in trademark infringement suits. "Gripe sites", on the other hand, tend to be protected as free speech, and are therefore more difficult to attack as trademark infringement. This clash of the new technology with preexisting trademark rights resulted in several high-profile decisions as the courts of many countries tried to coherently address the issue (and not always successfully) within the framework of existing trademark law. As the website itself was not the product being purchased, there was no actual consumer confusion, and so initial interest confusion was a concept applied instead. Initial interest confusion refers to customer confusion that creates an initial interest in a competitor's "product" (in the online context, another party's website). Even though initial interest confusion is dispelled by the time any actual sales occur, it allows a trademark infringer to capitalize on the goodwill associated with the original mark. Several cases have wrestled with the concept of initial interest confusion. In Brookfield Communications, Inc. v. West Coast Entertainment Corp. the court found initial interest confusion could occur when a competitor's trademarked terms were used in the HTML metatags of a website, resulting in that site appearing in the search results when a user searches on the trademarked term. In ''Playboy v. Netscape'', the court found initial interest confusion when users typed in Playboy's trademarks into a search engine, resulting in the display of search results alongside unlabeled banner ads, triggered by keywords that included Playboy's marks, that would take users to Playboy's competitors. Though users might ultimately realize upon clicking on the banner ads that they were not Playboy-affiliated, the court found that the competitor advertisers could have gained customers by appropriating Playboy's goodwill since users may be perfectly happy to browse the competitor's site instead of returning to the search results to find the Playboy sites. In Lamparello v. Falwell, however, the court clarified that a finding of initial interest confusion is contingent on financial profit from said confusion, such that, if a domain name confusingly similar to a registered trademark is used for a non-trademark related website, the site owner will not be found to have infringed where they do not seek to capitalize on the mark's goodwill for their own commercial enterprises. Also, courts have upheld the rights of trademark owners about the commercial use of domain names, even in cases where goods sold there legitimately bear the mark. In the landmark decision Creative Gifts, Inc. v. UFO, 235 F.3d 540 (10th Cor. 2000) (New Mexico), defendants had registered the domain name "Levitron.com" to sell goods bearing the trademark "Levitron" under an at-will license from the trademark owner. The 10th Circuit affirmed the rights of the trademark owner about the said domain name, despite arguments of promissory estoppel. Most courts particularly frowned on cybersquatting and found that it was itself a sufficiently commercial use (i.e., "trafficking" in trademarks) to reach into the area of trademark infringement. Most jurisdictions have since amended their trademark laws to address domain names specifically and to provide explicit remedies against cybersquatters. In the US, the legal situation was clarified by the Anticybersquatting Consumer Protection Act, an amendment to the Lanham Act, which explicitly prohibited cybersquatting. It defines cybersquatting as "(occurring) when a person other than the trademark holder registers the domain name of a well-known trademark and then attempts to profit from this by either ransoming the domain name back to the trademark holder or using the domain name to divert business from the trademark holder to the domain name holder". The provision states that "[a] person shall be liable in a civil action by the owner of the mark ... if, without regard to the goods or services of the person, that person (i) had a bad faith intent to profit from the mark ...; and registers, traffics in, or uses domain name [that is confusingly similar to another's a mark or dilutes another's marked]". This international legal change has also led to the creation of ICANN Uniform Domain-Name Dispute-Resolution Policy (UDRP) and other dispute policies for specific countries (such as Nominet UK's Dispute Resolution Service, DRS) which attempt to streamline the process of resolving who should own a domain name (without dealing with other infringement issues such as damages). This is particularly desirable to trademark owners when the domain name registrant may be in another country or even anonymous. Registrants of domain names also sometimes wish to register the domain names themselves (e.g., "XYZ.COM") as trademarks for perceived advantages, such as an extra bulwark against their domain being hijacked, and to avail themselves of such remedies as ''confusion'' or
passing off In common law countries such as the United Kingdom, the Philippines and New Zealand, passing off is a common law tort which can be used to enforce unregistered trade mark rights. The tort of passing off protects the Goodwill (accounting), goodw ...
against other domain holders with confusingly similar or intentionally misspelled domain names. As with other trademarks, the domain name will not be subject to trademark registration unless the proposed mark is actually used to identify the registrant's goods or services to the public, rather than simply being the location on the Internet where the applicant's web site appears. Amazon.com is a prime example of a protected trademark for a domain name central to the public's identification of the company and its products. Terms that are not protectable by themselves, such as a generic term or a merely descriptive term that has not acquired secondary meaning, may become registerable when a Top-Level Domain Name (e.g. dot-COM) is appended to it. An example of such a domain name ineligible for trademark or service mark protection as a generic term, but which currently has a registered U.S. service mark, is "HEARSAY.COM". Among trademark practitioners there remains a great deal of debate around trademark protection under ICANN's proposed generic top-level domain name space expansion. World Trademark Review has been reporting on the at times fiery discussion between trademark owners and domainers.


Security

Trademark owners and applications enjoy many protections. The National Intellectual Property Rights Coordination Center, IPR (Intellectual Property Rights) Center for example has the message of "protection is our trademark" and is one example of an office that will enforce and protect the marks when needed.


International law

Although there are systems that facilitate the filing, registration, or enforcement of trademark rights in more than one jurisdiction on a regional or global basis, it is currently not possible to file and obtain a single trademark registration that will automatically apply around the world. Like any national law, trademark laws apply only in their applicable country or jurisdiction, a quality which is sometimes known as "territoriality".


Territorial application

The inherent limitations of the territorial application of trademark laws have been mitigated by various
intellectual property Intellectual property (IP) is a category of property Property is a system of rights that gives people legal control of valuable things, and also refers to the valuable things themselves. Depending on the nature of the property, an owner of ...
treaty, treaties, foremost amongst which is the World Trade Organization, WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). TRIPS establishes legal compatibility between member jurisdictions by requiring the harmonization of law, harmonization of applicable laws. For example, Article 15(1) of TRIPS defines "sign" which is used as or forms part of the definition of "trademark" in the trademark legislation of many jurisdictions around the world.


Madrid system

The major international system for facilitating the registration of trademarks in multiple jurisdictions is commonly known as the "Madrid system ". Madrid provides a centrally administered system for securing trademark registrations in member jurisdictions by extending the protection of an "international registration" obtained through the World Intellectual Property Organization. This international registration is in turn based upon an application or registration obtained by a trademark applicant in its home jurisdiction. The primary advantage of the Madrid system is that it allows a trademark owner to obtain trademark protection in many jurisdictions by filing one application in one jurisdiction with one set of fees, and make any changes (e.g. changes of name or address), and renew registration across all applicable jurisdictions through a single administrative process. Furthermore, the "coverage" of the international registration may be extended to additional member jurisdictions at any time.


Trademark Law Treaty

The Trademark Law Treaty establishes a system under which member jurisdictions agree to standardize procedural aspects of the trademark registration process. It is not necessarily respective of rules within individual countries.


Community Trademark system

The EU Trade Mark (EUTM) system (formerly the Community Trademark system) is the trademark system which applies in the European Union, whereby registration of a trademark with the European Union Intellectual Property Office (EUIPO, formerly Office for Harmonization in the Internal Market (Trade Marks and Designs)), leads to a registration which is effective throughout the EU as a whole. The EUTM system is therefore said to be unitary in character, in that a EUTM registration applies indivisibly across all European Union member states. However, the CTM system did not replace the national trademark registration systems; the CTM system and the national systems continue to operate in parallel to each other (see also Trade mark law of the European Union, European Union trade mark law). Persons residing outside the EU must have a professional representative to the procedures before EUIPO, while representation is recommended for EU residents. One of the tasks of a EUTM owner is the monitoring of the later applications whether any of those is similar to his/her earlier trademark. Monitoring is not easy and usually requires professional expertise. To conduct a monitoring there is the so-called Trademark Watching service where it can be checked if someone tries to get registered marks that are similar to the existing marks. Opposition proceeding, Oppositions should be filed on the standard opposition form in any official language of the European Union, however, the substantive part of the opposition (e.g. the argumentations) can be submitted only in the language of the opposed application, that is one of the working languages of the EUIPO, e.g. English, Spanish, German.


Well-known status

Well-known trademark status is commonly granted to famous international trade marks in less-developed legal jurisdictions. Under Article 6 ''bis'' of the Paris Convention for the Protection of Industrial Property, Paris Convention, countries are empowered to grant this status to marks that the relevant authority considers are 'well known'. In addition to the standard grounds for trademark infringement (same/similar mark applied same/similar goods or services, and a likelihood of confusion), if the mark is deemed well known it is an infringement to apply the same or a similar mark to dissimilar goods/services where there is confusion, including where it takes unfair advantage of the well-known mark or causing detriment to it. A well-known trademark does not have to be registered in the jurisdiction to bring a trademark infringement action (equivalent to bringing a passing off claim without having to show goodwill and having a lesser burden of proof). As per the Trademark Rules 2017, India, an applicant needs to substantiate his claim that his trademark is having the "well-known" status. He needs to furnish the documents in support of evidence of his rights & claims, namely use of trademark, any application for trademark, and annual sales turnover, and so on.


Protection of well-known marks

Many countries protect unregistered well-known marks following their international obligations under the Paris Convention for the Protection of Industrial Property and the Agreement on Trade-Related Aspects of Intellectual Property Rights (the TRIPS Agreement). Consequently, not only big companies but also SMEs may have a good chance of establishing enough goodwill with customers so that their marks may be recognized as well-known marks and acquire protection without registration. It is, nevertheless, advisable to seek registration, taking into account that many countries provide for extended protection of registered well-known marks against dilution (Art. 16.3 TRIPS),[Article 6bis of the Paris Convention (1967) shall apply, mutatis mutandis, to goods or services which are not similar to those in respect of which a trademark is registered, provided that use of that trademark about those goods or services would indicate a connection between those goods or services and the owner of the registered trademark and provided that the interests of the owner of the registered trademark are likely to be damaged by such use] i.e., the reputation of the mark being weakened by the unauthorized use of that mark by others.WIPO
/ref> Several trademark laws merely implement obligations under Article 16.3 of the TRIPS Agreement and protect well-known registered trademarks only under the following conditions: 1- that the goods and services for which the other mark is used or is seeking protection are not identical with or similar to the goods for which the well-known mark acquired its reputation 2- that the use of the other mark would indicate a connection between these goods and the owner of the well-known mark, and 3 – that their interests are likely to be damaged by such use.


References


External links


"Quick Facts"
by the Intellectual Property Office (United Kingdom)
Trademark Fact Sheets
by the International Trademark Association
Trade Marks: The information brochure on trademark protection
by the Deutsches Patent- und Markenamt, German Patent and Trade Mark Office (GPTO)
Patent and Trademark Information
from ''UCB Libraries GovPubs''

* {{Authority control Trademarks, Brand management Brands Intellectual property law Product management Intangible assets