Trademark
A trademark is a form of intellectual property that consists of a word, phrase, symbol, design, or a combination that identifies a product or service from a particular source and distinguishes it from others. Trademarks can also extend to non-traditional marks like drawings, symbols, 3D shapes like product designs or packaging, sounds, scents, or specific colours used to create a unique identity. For example, Pepsi is a registered trademark associated with soft drinks, and the distinctive shape of the Coca-Cola bottle is a registered trademark protecting Coca-Cola's packaging design.
The primary function of a trademark is to identify the source of goods or services and prevent consumers from confusing them with those from other sources. Legal protection for trademarks is typically secured through registration with governmental agencies, such as the United States Patent and Trademark Office or the European Union Intellectual Property Office. Registration provides the owner certain exclusive rights and provides legal remedies against unauthorised use by others.
Trademark laws vary by jurisdiction but generally allow owners to enforce their rights against infringement, dilution, or unfair competition. International agreements, such as the Paris Convention and the Madrid Protocol, simplify the registration and protection of trademarks across multiple countries. Additionally, the TRIPS Agreement sets minimum standards for trademark protection and enforcement that all member countries must follow.
Terminology
Trademarks
The term trademark can also be spelled trade mark in regions such as the EU, UK, and Australia, and as trade-mark in Canada. Despite the different spellings, all three terms denote the same concept.In the United States, the Lanham Act defines a trademark as any word, phrase, symbol, design, or combination of these things used to identify goods or services. Trademarks help consumers recognise a brand in the marketplace and distinguish it from competitors. A service mark, also covered under the Lanham Act, is a type of trademark used to identify services rather than goods. The term trademark is used to refer to both trademarks and service marks.
Similarly, the World Intellectual Property Organization defines a trademark as a sign capable of distinguishing the goods or services of one enterprise from those of other enterprises. WIPO administers the Madrid Protocol, which allows trademark owners worldwide to file one application to register their trademark in multiple countries.
Almost anything that identifies the source of goods or services can serve as a trademark. In addition to words, slogans, designs, or combinations of these, trademarks can also include non-traditional marks like sounds, scents, or colours.
Under the broad heading of trademarks, there are several specific types commonly encountered, such as trade dress, collective marks, and certification marks:
- Trade dress: the design and packaging of a product. For example, the distinctive decor of the Hard Rock Cafe restaurant chain is considered trade dress. The Lanham Act protects trade dress when it serves as a source identifier, similar to a trademark.
- Collective mark: A type of trademark used by members of a collective organisation to indicate that the goods or services originate from members who meet the organisation's admission standards. For instance, the collective mark BEST WESTERN is used by its members for hotel services.
- Certification mark: A type of trademark used by authorised individuals or businesses to indicate to consumers that specific goods or services, or their providers, meet the quality standards set by a certifying organisation. For example, the ENERGY STAR certification mark is used by authorised users to show that their products meet the energy efficiency standards established by the U.S. Environmental Protection Agency.
Trademark symbols
A trademark may be designated by the following symbols:- ™: For unregistered trademarks related to goods.
- ': For unregistered service marks connected to services.
- ': Reserved for registered trademarks.
Brand vs. trademark
A brand is a marketing concept that reflects how consumers perceive a product or service. It has a much wider meaning and refers to the proprietary visual, emotional, rational, and cultural image that customers associate with a company or product.A trademark, by contrast, offers legal protection for a brand with enforceable rights over the brand's identity and distinguishing elements.
Fundamental concepts
Public policy
Trademark law is designed to fulfill the public policy objective of consumer protection, by preventing the public from being misled as to the origin or quality of a product or service. By identifying the commercial source of products and services, trademarks facilitate the identification of products and services which meet the expectations of consumers as to the quality and other characteristics.Trademarks may also serve as an incentive for manufacturers, providers, or suppliers to consistently provide quality products or services to maintain their business reputation. Furthermore, if a trademark owner does not maintain quality control and adequate supervision about the manufacture and provision of products or services supplied by a licencee, such "naked licensing" will eventually adversely affect the owner's rights in the trademark. For US law see, ex. ''Eva's Bridal Ltd. v. Halanick Enterprises, Inc. 639 F.3d 788. This proposition has, however, been watered down by the judgement of the House of Lords in the case of Scandecor Development AB v. Scandecor Marketing AB et al.'' UKHL 21; wherein it has been held that the mere fact that a bare licence has been granted did not automatically mean that a trademark was liable to mislead.
By the same token, trademark holders must be cautious in the sale of their mark for similar reasons as apply to licensing. When assigning an interest in a trademark, if the associated product or service is not transferred with it, then this may be an "assignment-in-gross" and could lead to a loss of rights in the trademark. It is still possible to make significant changes to the underlying goods or services during a sale without jeopardising the trademark, but companies will often contract with the sellers to help transition the mark and goods or services to the new owners to ensure continuity of the trademark.
Comparison with patent and copyright
Trademarks are often confused with patents and copyrights. Although all three laws protect forms of intangible property, collectively known as intellectual property, they each have different purposes and objectives:| Trademark | Patent | Copyright | |
| Protects | A word, phrase, design, or a combination that identifies and distinguishes each party's goods or services from those of others and indicates their sources. | Technical inventions, such as chemical compositions like pharmaceutical drugs, mechanical processes like complex machinery, or machine designs that are new, unique, and usable in some type of industry. | Artistic, literary, or intellectually created works, such as novels, music, movies, software code, photographs, and paintings that are original and exist in a tangible medium, such as paper, canvas, film, or digital format. |
| Example | Coca-Cola® for soft drinks | A new type of hybrid engine | Song lyrics to "Let It Go" from Frozen |
| Benefits | Protects brands against unauthorised registration by other parties and helps prevent others from using similar trademarks with related goods or services. | Safeguards inventions and processes against duplication, manufacturing, usage, or sale by other parties without the inventor's consent. | Protects the exclusive right to reproduce, distribute, and perform or display the created work, and prevents other people from copying or exploiting the creation without the copyright holder's permission. |
Among these types of IP, only trademark law offers the possibility of perpetual rights, provided the trademark is continuously used and renewed. However, if a trademark is no longer in use, its registration may be subject to cancellation. Trademarks can also lose protection through genericide, a process where a trademark becomes so widely used to refer to a category of goods or services that it loses its distinctiveness and legal protection. A well-known example is "escalator," which was once a trademark.
In contrast, patents have a fixed term, typically lasting 20 years from the filing date, after which the invention enters the public domain. Copyrights generally last for the life of the author plus an additional 50 to 70 years, after which the protected work enters the public domain.
Although intellectual property laws such as these are theoretically distinct, more than one type may afford protection to the same article. For example, the particular design of a bottle may qualify for copyright protection as a non-utilitarian , or trademark protection based on its shape, or the 'trade dress' appearance of the bottle as a whole may be protectable. Titles and character names from books or movies may also be protectable as trademarks while the works from which they are drawn may qualify for copyright protection as a whole. Trademark protection does not apply to utilitarian features of a product such as the plastic interlocking studs on Lego bricks.