A Trademark is a recognizable sign, design or expression distinguishing the source of goods or services of one person from those of others. Trademarks used to identify services are usually called service marks. The trademark owner can be an individual, business organization, or any legal entity. It covers the shape of goods, language, their package and combination of colors. It can be a word, letters, numbers, designs, symbols, pictures, stamps, seals and signs or combination of the same. A trademark may be located on a package, a label, a voucher, or on the product itself.
Usage of Trademark
A trademark identifies the brand owner of a particular product or service. It helps in the unique positioning of a product or service in the market. Trademarks can be licensed to others. 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 registration of a trademark as a precondition for pursuing this type of action. Although many countries recognize common law for trademark rights, which means action can be taken to protect an unregistered trademark if it is in use, still common law of trademarks offer the holder in general less legal protection than registered trademarks.
Trademark: Fundamental Concepts
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.
It should be noted that 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 Classification of Goods and Services (NICE Classification) 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.
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.
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.
Intellectual Property (IP) refers to creations of the intellect for which a monopoly is assigned to designated owners by law. Intellectual Property Rights (IPRs) are the rights granted to the creators of IP, and include Trademarks, Copyright, Patents, Industrial Design Rights, and in some jurisdictions Trade Secrets. Artistic works including music and literature, as well as discoveries, inventions, words, phrases, symbols, and designs can all be protected as intellectual property.
Intellectual Property Rights
Intellectual property rights include Trademarks, Copyright , Patents, Industrial Design Rights and in some jurisdictions Trade Secrets. There are also more specialized or derived varieties of sui generis exclusive rights, such as circuit design rights (called mask work rights in the US) and supplementary protection certificates for pharmaceutical products (after expiry of a patent protecting them) and database rights (in European law).
A trademark is a recognizable sign, design or expression which distinguishes products or services of a particular trader from the similar products or services of other traders. Trademarks are specific to a country or union (cluster of countries).
The validity of Trademark registration is normally for a period of 10 years and renewable. The owner has exclusive rights to use the Trademark and legally prevent its unauthorized use.
A copyright gives the creator of an original work exclusive rights to it, usually for a limited time. Copyright may apply to a wide range of creative, intellectual, or artistic forms, or works.
Copyright does not cover ideas and information themselves, but only the form or manner in which they are expressed. The owner of a copyright has the exclusive right to reproduce, distribute or perform the work publicly.
The duration of the protection is normally for the lifetime of the author plus 50 years after his death or 50 years from the date of publication in case of cinematographic works, works of corporate bodies, and works published for the first time after the death of the author.
A patent is a form of right granted by the government to an inventor, giving the owner the right to exclude others from making, using, selling, offering to sell, and importing an invention for a limited period of time, in exchange for the public disclosure of the invention.
An invention is a solution to a specific technological problem, which may be a product or a process and generally has to fulfil three main requirements: it has to be new, not obvious and there needs to be an industrial applicability. Patents are specific to a country. The validity of Patent is for a period of 20 years.
Industrial Design Rights
An Industrial Design Right , also known as Design Right or Design Patent protects the visual design of objects that are not purely utilitarian. An industrial design consists of the creation of a shape, configuration or composition of pattern or color, or combination of pattern and color in three-dimensional form containing aesthetic value. An industrial design can be a two- or three-dimensional pattern used to produce a product, industrial commodity or handicraft.
Registered Designs are specific to a country. The validity of registration is normally for a period of 15 years.
A Trade Secret is a formula, practice, process, design, instrument, pattern, or compilation of information which is not generally known or reasonably ascertainable, by which a business can obtain an economic advantage over competitors and customers. There is no formal government protection granted; each business must take measures to guard its own trade secrets.
Objectives of Intellectual Property Rights
The core objective of most intellectual property law (with the exception of trademarks) is to “Promote progress.” By exchanging limited exclusive rights for disclosure of inventions and creative works, society and the patentee/copyright owner mutually benefit, and an incentive is created for inventors and authors to create and disclose their work.
Similarly registering a Trademark essentially become a notice to the public of the registrant’s claim of ownership of the mark. A registered Trademark serves as a presumption of ownership nationwide and exclusive right to use the mark in connection with the goods and services listed in the registration. Registering a Trademark is the quickest and most cost-effective way to ensure legal exclusivity for the use of a tradename or logo.
These exclusive Intellectual Property Rights allow the owners of intellectual property to benefit from the works they have created by providing a financial incentive for the creation. It persuades them to indulge in more and more creative pursuits as despite from ensuring financial security, financial incentives from their intellectual property will take care of the costs involved for associated research and development.
The WIPO treaty and several related international agreements underline that the protection of intellectual property rights is essential to maintaining economic growth.
The prevailing Intellectual Property Laws worldwide give emphasis to two important aspects. All intellectual property laws aim at reserving statutory expression to the moral and economic rights of creators in their creations and put limits to public rights to access those creations. It aims to promote, as a deliberate act of Government Policy, creativity and the dissemination and application of its results and to encourage fair trading which would contribute to economic and social development
The Legal and IP professionals at Khidmaty Government Services can take care of all your Intellectual Property needs such as worldwide Trademark Registration, Copyright Protection, Patent Writing and Registration, Industrial Design Registration, Domain Registration, Protection and Enforcement of Trademarks, Surveillance/Watch Services of Registered Trademarks, License to Use Assignments and Amendments, Intellectual Property Rights Recording (IPR Recording) with Regional Customs Authorities, etc.