What is trademark ?

Dr Dipak Nath *

A trademark is a recognizable insignia, phrase, word, or symbol that denotes a specific product and legally differentiates it from all other products of its kind. A trademark exclusively identifies a product as belonging to a specific company and recognizes the company’s ownership of the brand. Trademarks are generally considered a form of intellectual property.

A trademark is a type of intellectual property consisting of 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.The 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.

For the sake of corporate identity, trademarks are often displayed on company buildings. It is legally recognized as a type of intellectual property.The essential function of a trademark is to exclusively identify the 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 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 non-commercial 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 in relation to certain products or services, assuming there are no other trademark objections. A trademark protects words and design elements that identify the source, owner, or developer of a product or service.

Different than a trademark, a patent safeguards an original invention for a certain period of time, and there can be many different types of patents. Unlike patents, copyrights protect “works of authorship,” such as writing, art, architecture, and music.

Trademark and copyright law rarely overlap, but it can happen for instance, when a graphic illustration is used as a logo, the design may be protected both under copyright and trademark law. Trademarks can be bought and sold. Trademarks also can be licensed to other companies for an agreed-upon time or under certain conditions, which can result in crossover brands.

Some law considers a trademark to be a form of property. Proprietary rights in relation to 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.

In the United States, the registration process includes several steps. First, the trademark owner files an application 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 cause confusion with a pre-existing applied-for or registered mark.

If the application runs a foul of any requirement, the examining attorney will issue an office action requiring the applicant to address certain issues or refusals prior to 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 favour, the mark will be registered in due course.

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 existing registered products or services, and in certain cases, prevent use in relation to 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.

The Trade Marks Registry in India was established in 1940 and presently it regulates the prevailing law Trade Marks Act, 1999 and their rules to protect misuse of trademarks. Trade Marks Registry provides resources, facilitates information centres and regulates all matters relating to trademarks.

The purpose of the Trade Marks Act, 1999 is trademarks registrations in the country and ensure protection to the registered trademark for goods and services. This also helps original trademark owners to prevent fraudulent use of their trademark. The main function of the Trademark Registry is to register trademarks which qualifies for registration under the prevailing trademark and their amendment Act and Rules.