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A trademark , trade mark , or trade-mark  is a recognizable sign , design , or expression which identifies products or services of a particular source from those of others,   although trademarks used to identify services are usually called service marks. A trademark may be located on a package , a label , a voucher , or on the product itself. For the sake of corporate identity , trademarks are often displayed on company buildings.
The first legislative act concerning trademarks was passed by the Parliament of England in under the reign of 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 the first comprehensive trademark system in the world was passed into law in The Act, which served as a model for similar legislation elsewhere, contained other novel concepts such as "associated trademarks", a consent to use system, a defensive mark system, and non claiming right system.
A trademark identifies the brand owner of a particular product or service. Trademarks can be licensed to others; for example, Bullyland obtained a license to produce Smurf figurines; the Lego Group purchased a license from Lucasfilm in order to be allowed to launch Lego Star Wars ; TT Toys Toys is a manufacturer of licensed ride-on replica cars for children. The owner of a trademark may pursue legal action against trademark infringement.
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 an unregistered trademark if it is in use.
Still, common law trademarks offer the holder in general less legal protection than registered trademarks. A trademark is typically a name, word, phrase, logo , symbol , design , image, or a combination of these elements.
Trademarks which 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 in relation to services rather than products, it may sometimes be called a service mark , particularly in the United States. The essential function of a trademark is to exclusively identify the commercial source or origin of products or services, so a trademark, properly called, indicates source or serves as a badge of origin. In other words, trademarks serve to identify a particular business 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. Trademark rights generally arise out of the use of, or to maintain exclusive rights over, that sign in relation to 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. In trademark treatises it is usually reported that blacksmiths who made swords in the Roman Empire are thought of as being the first users of trademarks.
In France the first comprehensive trademark system in the world was passed into law in with the "Manufacture and Goods Mark Act". In Britain, the Merchandise Marks Act made it a criminal offense to imitate another's trade mark 'with intent to defraud or to enable another to defraud'. Registration was considered to comprise prima facie evidence of ownership of a trade mark and registration of marks began on 1 January The 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 This statute purported to be an exercise of Congress' Copyright Clause powers. However, the Supreme Court struck down the statute in the Trade-Mark Cases later on in the decade. In , Congress passed a new trademark act, this time pursuant to its Commerce Clause powers.
Congress revised the Trademark Act in 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. The proper manner to display either symbol is immediately following the mark in superscript style. Terms such as "mark", " brand " and " logo " are sometimes used interchangeably with "trademark".
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 which 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.
The law considers a trademark to be a form of property. Proprietary rights in relation to a trademark may be established through actual use in the marketplace , or through registration of the mark with the trademarks office or "trademarks registry" of a particular jurisdiction. In some jurisdictions, trademark rights can be established through either or both means. Certain jurisdictions generally do not recognize trademarks rights arising 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 will therefore be limited. In cases of dispute, this disparity of rights is often referred to as "first to file" as opposed to "first to use.
In the United States, the registration process includes several steps. First, the trademark owner files an application to register the trademark. About three months after it is filed, the application is reviewed by an examining attorney at the U.
Patent and Trademark Office. The examining attorney checks for compliance with the rules of the Trademark Manual of Examination Procedure. It also includes more substantive matters such as making sure the applicant's mark is not merely descriptive or likely to cause confusion with a pre-existing applied-for or registered mark. If the examining attorney approves the application, it will be "published for opposition.
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. Outside of the United States the registration process is substantially similar to that found in the U. 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 for a period of typically 6 months from the date of registration.
A registered trademark confers a bundle of exclusive rights upon the registered owner, including the right to exclusive use of the mark in relation to 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 in relation to products or services which are identical or "colourfully" similar to the "registered" products or services, and in certain cases, prevent use in relation to entirely dissimilar products or services.
The test is always whether a consumer of the goods or services will be confused as to the identity of the source or origin. An example may be a very large multinational brand such as "Sony" where a non-electronic product such as a pair of sunglasses might be assumed to have come from Sony Corporation of Japan despite not being a class of goods that Sony has rights in.
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. The database is open to the public. A licensed attorney may be required to interpret the search results.
As trademarks are governed by federal law, state law, and common law, a thorough search as to the availability of a mark is very important. In the United States obtaining a trademark search and relying upon the results of an opinion issued by an attorney may insulate a trademark user from being required to pay treble damages and attorney's fees in a trademark infringement case as it demonstrates that the trademark user performed due diligence and was using the mark in good faith.
The USPTO internally captures more information about trademarks than what they publicly disclose on their official search website, such as the complete contents of every logo trademark filing. Trademarks may also be searched on third-party databases such as LexisNexis , Dialog , and CompuMark. Within the European Union, searches have to be conducted taking into account both EU Trademarks as well as national trademarks. Classification systems exist to help in searching for marks.
In most systems, a trademark can be registered if it is able to distinguish the goods or services of a party, will not confuse consumers about the relationship between one party and another, and will not otherwise deceive consumers with respect to the qualities.
A trademark may be eligible for registration, or registerable, if it performs the essential trademark function, and has distinctive character. Registerability can be understood as a continuum, with "inherently distinctive" marks at one end, "generic" and "descriptive" marks with no distinctive character at the other end, and "suggestive" and "arbitrary" marks lying between these two points. See the KitKat v Cadbury case. Trademarks rights must be maintained through actual lawful use of the trademark.
These rights will cease if a mark is not actively used for a period of time, normally 5 years in most jurisdictions. In the case of a trademark registration, failure to actively use the mark in the lawful course of trade, or to enforce the registration in the event of infringement, may also expose the registration itself to become liable for an application for the removal from the register after a certain period of time on the grounds of "non-use".
It is not necessary for a trademark owner to take enforcement action against all infringement if it can be shown that the owner perceived the infringement to be minor and inconsequential.
This is designed to prevent owners from continually being tied up in litigation for fear of cancellation. An owner can at any time commence action for infringement against a third party as long as it had not previously notified the third party of its discontent following third party use and then failed to take action within a reasonable period of time called acquiescence.
The owner can always reserve the right to take legal action until a court decides that the third party had gained notoriety which the owner 'must' have been aware of. It will be for the third party to prove their use of the mark is substantial as it is the onus of a company using a mark to check they are not infringing previously registered rights.
In the US, owing to the overwhelming number of unregistered rights, trademark applicants are advised to perform searches not just of the trademark register but of local business directories and relevant trade press. Specialized search companies perform such tasks prior to application.
All jurisdictions with a mature trademark registration system provide a mechanism for removal in the event of such non use , which is usually a period of either three or five years. The intention to use a trademark can be proven by a wide range of acts as shown in the "Wooly Bull" and Aston v Harlee cases.
An abandoned mark is not irrevocably in the public domain , but may instead be re-registered by any party  which has re-established exclusive and active use, and must be associated or linked with the original mark owner. A mark is registered in conjunction with a description of a specific type of goods, and if the party uses the mark but in conjunction with a different type of goods, the mark may still be considered abandoned, as was the case in Lens. If a court rules that a trademark has become " generic " through common use such that the mark no longer performs the essential trademark function and the average consumer no longer considers that exclusive rights attach to it , the corresponding registration may also be ruled invalid.
Unlike other forms of intellectual property e. So long as a trademark's use is continuous a trademark holder may keep the mark registered with the U. Specifically, once registered with the U. Patent and Trademark Office the owner of a trademark is required to file a Section 8 Affidavit of Continuous Use to maintain the registration between the 5th and 6th year anniversaries of the registration of the mark or during the 6-month grace period following the 6th-year anniversary of the registration.
A mark declared incontestable is immune from future challenge, except in instances where the mark becomes generic, the mark is abandoned, or if the registration was acquired fraudulently. Note, if the Section 8 Affidavit is filed during the 6-month grace period additional fees to file the Affidavit with the U.