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A trademark includes any word, name, symbol, or device, or any combination, used, or intended to be used, in commerce to identify and distinguish the goods of one manufacturer or seller from goods manufactured or sold by others, and to indicate the source of the goods. In short, a trademark is a brand name.
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Trade mark is an important form of Industrial Property Rights. It plays a key role in a consumer economy. As in the case of other forms of Intellectual Property Rights, trade marks also exhibit the dialectics between public and private interests. As a source identifier, a trade mark enables the consumers to identify the origin of the goods/services.
The consumer thus gets the goods/services of his/her choice. On the other hand, the originator of the goods (for example the company that manufactures the goods) gets protection for the mark. Most national laws on trade marks are designed to balance this duality of interests. Further, the national laws define the legal rights of the owners of trade marks and prescribe the boundaries of such legal rights. Unregistered trade marks are protected under the principles of common law in many countries. |
What Marks are Registrable
All marks are not registrable. For a Mark to be registrable, it must conform to certain statutory prescriptions. One such fundamental prescription is that a mark to be registrable must be "distinctive". The quality of distinctiveness, distinctive character, or capable of distinguishing is a basic principle that finds place in most national laws. A word having a direct reference to the character or quality of goods is not registrable.
However a word having direct reference to the character or quality of goods is registrable if it has acquired distinctiveness through long and continuous use. There are several other principles, all tested by a number of judicial decisions, elaborating the registrability of trade marks. |
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Trade Marks Administration System
The trade marks registration systems in most countries forms part of unified intellectual property administration system. An application for the registration of trade marks must be filed at the office designated for purposes of granting trade marks registration. Ordinarily this function is performed by the national IP Offices.
The trade marks office will conduct an examination of the application, conduct a search to identify if there exist prior registrations and advertise the trade marks before accepting the application. Once the application is accepted, the mark will be registered in the national trade marks register and a certificate of registration will be issued. Typically one term of registration is 10 years, which is extendible from time to time.
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A trademark is much like that of a human being because the life of a trademark may be correlated to the life of a human being. Every human being is to be named immediately after birth in this earth and on the same line every product is to be identified with a trademark. Hence there is need to nurture trademarks like human beings.
Trademark is a major asset of any company. Hence ' trademarks management ' in an enterprise comprises two aspects:
Trademark Policy
Trademark Protection
Trademark policy is a marketing function. Normally the marketing personnel of an organization will take care of this trademark policy letter known as ' Brand Management '.
Trademark protection is a legal function .In small enterprises one of the tasks of the legal department is to assure the protection of company's trademarks. In large enterprises there is need to create a specific department known as ' Trademarks department' which will look after the ' Trademarks Management '.
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