trademark (also written trade mark or trade-mark) is a type of intellectual property consisting of a recognizable sign, design, or expression that identifies a product or service from a particular source and distinguishes it from others. A trademark owner can be an individual, business organization, or any legal entity. A trademark may be located on a package, a label, a voucher, or on the product itself. Trademarks used to identify services are sometimes called service marks.
The first legislative act concerning trademarks was passed in 1266 under the reign of Henry III of England 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, the first comprehensive trademark system in the world was passed into law in 1857. The Trade Marks Act 1938 of the United Kingdomchanged 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) and ® (the 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 owner of a particular product or service. Trademarks can be used by others under licensing agreements; for example, the Lego Group purchased a license from Lucasfilm to be allowed to launch Lego Star Wars. The unauthorized usage of trademarks by producing and trading counterfeit consumer goods is known as brand piracy.
The owner of a trademark may pursue legal action against trademark infringement. Most countries require formal trademark registration 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.
As the purpose of the trademark is to identify a particular source of the product, rather than the product itself, it is widespread legal advice that trademark owners should always use their trademarks as adjectives modifying a generic product name, and set off with capitalization or a distinctive typeface, as a guard against the trademark becoming the generic name of the product. Thus "LEGO bricks" rather than "some Lego" or "Legos". The name of the producer itself is a "trade name" rather than a trademark and can be used as a noun.
Designation and symbols[]
A trademark may be designated by the following symbols:
- ™ (the "trademark symbol", which is the letters "TM" in superscript, for an unregistered trademark, a mark used to promote or brand goods)
- ℠ (which is the letters "SM" in superscript, for an unregistered service mark, a mark used to promote or brand services)
- ® (the letter "R" surrounded by a circle, for a registered trademark)
The three symbols associated with trademarks 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) or Indian Patent Office (IPO). The proper manner to display either symbol is immediately following the mark in superscript style.
Styles[]
A trademark is typically a name, word, phrase, logo, symbol, design, image, or a combination of these elements. 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 jingles). 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, particularly in the United States.
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 rights attach to a registered mark.
Trademarks are used not only by businesses but also by noncommercial organizations and religions to protect their identity 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 Services into 45 Trademark Classes (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[]
link=https://en.wikipedia.org/wiki/File:Trend_in_Trademarks_applications_2007-2021.png|thumb|An estimated 13.9 million trademark applications were filed worldwide in 2021. This is represents an increase of 4% compared to 2020. This was the twelfth consecutive year of growth following the end of the global financial crisis in 2009. link=https://en.wikipedia.org/wiki/File:Trademarks_filling_2011_and_2021.png|thumb|Offices in Asia accounted for 69.7% of all trademark filing in 2021. In trademark treatises it is usually reported that blacksmiths who made swords in the Roman Empireare thought of as being the first users of trademarks. Other notable trademarks that have been used for a long time include 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 Englandunder the reign of King 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'. The passing of the Trade Marks Registration Act 1875allowed formal registration of trademarks at the UK Patent Office for the first time. Registration was considered to comprise prima facieevidence 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'.
In the United States, Congress first attempted to establish a federal trademark regime in 1870. This statute purported to be an exercise of Congress' Copyright Clause powers. However, the Supreme Court struck down the 1870 statute in the Trade-Mark Cases later on in the decade. In 1881, Congress passed a new trademark act, this time according to its Commerce Clause powers. Congress revised the Trademark Act in 1905. The Lanham Act of 1946 updated the law and has served, with several amendments, as the primary federal law on trademarks.
The Trade Marks Act 1938 in the 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[]
[[null|link=https://en.wikipedia.org/wiki/File:Bass_logo_oldest_trademark.jpg%7Cthumb%7CBass Brewery's logo became the first image to be registered as a trademark in the UK, in 1876.]] The oldest registered trademark has various claimants, enumerated below:
- 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(1863), and colonies Queensland and Tasmania(1864), New South Wales (1895) Victoria (1876) and Western Australia (in 1885) had enacted laws to protect trademarks well before Britain did.Thus the 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 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: 1876 – The Bass Brewery's label incorporating its triangle logo for ale was the first trademark to be registered under the Trade Mark Registration Act 1875.
- 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 30 August 1870 under the Trademark Act of 1870. However, in the Trade-Mark Cases, 100 U.S. 82 (1879), 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 wrestling a lion, registered in the United States on 27 May 1884 by the J.P. Tolman Company (now Samson Rope Technologies, Inc.), a rope-making company.
- Germany: 1875 – The Krupp 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.
Terminology[]
[[null|link=https://en.wikipedia.org/wiki/File:Burberry_pattern.svg%7Cright%7Cthumb%7CApproximate drawing of Burberry check pattern. The pattern is a registered trademark of Burberry Ltd.]] Terms such as "mark", "brand" and "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 marks, 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. If such a mark becomes synonymous 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 look" 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. Proprietary rights about a trademark may be established through actual use of that trademark in the marketplace or through registration of the mark with the relevant trademarks office (or "trademarks registry") of a particular jurisdiction. In some jurisdictions, trademark rights can be established through either or both means. Certain jurisdictions[which?] generally do not recognize trademarks rights arising merely through use. If trademark owners do not hold registrations for their marks in such jurisdictions, the extent to which they will be able to enforce their rights through trademark infringement proceedings may be limited. In cases of dispute, this disparity of rights is often referred to as "first to file" (i.e., register) as opposed to "first to use". Some countries, such as Germany, offer a limited number of common law rights for unregistered marks, where to gain protection the goods or services must first occupy a highly significant position in the marketplace — where this could be 40% or more market share for sales in the particular class of goods or services.
In the United States, the registration process includes several steps. First, the trademark owner applies with the United States Patent and Trade Mark Office to register the trademark. About three months after it is filed, the application is reviewed by an examining attorney at the U.S. Patent and Trademark Office. The examining attorney checks for compliance with the rules of the Trademark Manual of Examination Procedure. This review includes procedural matters such as making sure the applicant's goods or services are identified properly. It also includes more substantive matters such as making sure the applicant's mark is not merely descriptive or likely to confuse with a pre-existing applied-for or registered mark. If the application runs afoul of any requirement, the examining attorney will issue an office action requiring the applicant to address certain issues or refusals before registration of the mark. If the examining attorney approves the application, it will be "published for opposition". During this 30-day period, third parties who may be affected by the registration of the trademark may step forward to file an opposition proceeding to stop the registration of the mark. If an opposition proceeding is filed it institutes a case before the Trademark Trial and Appeal Board to determine both the validity of the grounds for the opposition as well as the ability of the applicant to register the mark at issue. Finally, provided that no third-party opposes the registration of the mark during the opposition period or the opposition is ultimately decided in the applicant's favor, the mark will be registered in due course.
Outside of the United States, the registration process is substantially similar to that found in the U.S. save for one notable exception in many countries: registration occurs before the opposition proceeding. In short, once an application is reviewed by an examiner and found to be entitled to registration a registration certificate is issued subject to the mark being open to opposition. The overall length of the trademark registration process varies considerably between individual jurisdictions, from 2 to 24 months.
A registered trademark confers a bundle of exclusive rights upon the registered owner, including the right to exclusive use of the mark about the products or services for which it is registered. The law in most jurisdictions also allows the owner of a registered trademark to prevent unauthorized use of the mark about products or services which are identical or "colorfully similar" to existing registered products or services, and in certain cases, prevent the use of entirely dissimilar ones. The test is always whether a consumer of the goods or services will be confused as to the identity of the source or origin, not just the area of rights specified by the trademark. An example might be a very large multinational electronics brand such as Sony Corporation where a non-electronic product such as a pair of sunglasses might be assumed by a consumer to have come from Sony Corporation of Japan despite being outside a class of goods to which Sony has rights, yet still protected by Sony's trademark; a similarly named psychotherapy office or line of hamburger buns or summer camps, however, would not be infringing on Sony Corporation's trademark because the service or products being offered are so vastly different from Sony Corporation's trademark claim of rights and range of manufactured goods.
Once trademark rights are established in a particular jurisdiction, these rights are generally only enforceable in that jurisdiction, a quality which is sometimes known as "territoriality". However, there is a range of international trademark laws and systems which facilitate the protection of trademarks in more than one jurisdiction.
Top Madrid trademark applicants[]
The Madrid System for the International Registration of Marks is a protocol to protect trademarks worldwide, in over 120 countries. The Madrid System has a centralized trademark registration system through a single application, in one language and with one set of fees (in one currency, the Swiss franc), protection can be obtained in member states and intergovernmental organizations. International registrations can then be modified, renewed or expanded, centrally through WIPO (rather than through each separate IP Office). The Madrid System can only be used by a natural person or a legal entity, which is a national, is domiciled or has a company in the territory of a member of the Madrid System.