LETS KNOW MORE ABOUT TRADEMARKS!

What is a Trademark?

A trademark, popularly known as a brand name or a business name, is a type of intellectual property consisting of a visual symbol or distinctive sign which may be a word, letter, signature, drawing, shape, name, device, label, numerals or combination of colors, etc., which distinguishes the goods and services of one company/business from goods or services of another business.  

It is a legal protection or a title that grants exclusive protection within a national zone. A trademark helps consumers to identify and choose between products/services based on their distinction, reputation, and quality.

What does a Trademark protect?

The purpose of a trademark is to protect your business’s brand identity in the marketplace. To use another shoe company as an example, the NIKE trademark of the ‘Swoosh’ logo lets people know that the shoes they’re about to buy were designed and made by NIKE company. If a company begins selling shoes with a similar logo design or an inverted Swoosh design, people could easily think those shoes are also NIKE shoes. Not only does NIKE lose money from the lost and fake sale, but they also lose consumer confidence, if the similar looking shoes are inferior in quality. The law says that your trademark is infringed upon when another company’s brand elements are similar enough to confuse consumers.

What are the types of Trademarks?

Trademarks can be of various types-

1. Word Marks – The most common being word marks, which contain and consist only of letters. For example – Adidas, Starbucks, Whirlpool, Nestlé, Volkswagen.  
2. Composite Marks: There are marks that cannot be considered as word marks because the word has a special design. These marks are called complex marks, or composite marks, and they can consist of a logo, a word or a special script which consists of the use of a word and a logo together. For instance, the trademark ‘Marlboro‘ cannot be considered a word mark because the wording has a special design/script or a style.
3. Service Marks: The third type of marks are service marks, like Facebook, Google, Starbucks and McDonald’s. Starbucks and McDonald’s are essentially service marks, despite the fact that they can also assign products.
4. Sound, Smell & Taste: Interestingly, sound, smell, and taste can also be trademarked and are known as unconventional trademarks. While sounds marks like the Nokia jingle are pretty common these days, smell marks are fairly rare. In fact, the first smell mark was registered in the United Kingdom by Sumitomo Rubber for a floral fragrance or smell reminiscent of roses as applied to vehicle tires.
5. 3D Trademarks: A trademark can also consist of a 3D shape.
6. Colors/Combination of colors:  Colors can also be protected as trademarks. But pure colors, or colors per se (green, for example) cannot be protected, this is in order to avoid an undesired monopoly. Protection is possible only when it is a specific and particular shade or a particular combination of colors.

What are the legal characteristics of a valid Trademark?

When can we say that a mark is valid in a country? These characteristics help define a strong and solid trademark.

1. Distinctiveness: a mark must be distinctive. This is the most important element in the level of choosing a mark, protecting it, managing it and enforcing it. A mark must be easily distinguishable from another brand name. A distinctive mark is good, solid and strong and does not define the services that it represents. The opposite is a descriptive mark.
2. Indication of origin – a trademark should be indicative of the source of origin of the respective goods i.e. be able to indicate the manufacturer of trader.
3. Novelty: not in conflict with prior signs. A mark must be available to be adopted. It should not be already taken by an existing brand owner.
4. Not be Descriptive: a mark is descriptive when it describes the goods/services: their qualities, characteristics, origin, purpose, materials, etc. Sometimes, adopting a more descriptive mark can be good to impose it on the market. However, descriptive marks are difficult to enforce.
5. Not be Misleading: a misleading mark is a ”liar”. When determining if a mark is misleading, you don’t compare two different marks. You only look at the mark at hand. If the message it gives you is fake, it is misleading. For example: if the mark of a beverage gives you an idea that it is a healthy drink but in fact it contains alcohol, it is misleading.
6. Not be Generic: an example of a generic mark is ”Cotton” for cotton. This is not allowed because it would monopolize a generic word that should be free for all producers of the goods to use. Furthermore, it is not creative and does not distinguish the goods of one undertaking from goods of another undertaking. A mark can be both descriptive and generic.
7. Not be Contrary to public order/morality: Marks playing on terrorism are considered contrary to public order and morality. What falls under this category can vary depending on in which country registration is sought since what falls under this category differs between countries (nobody can force a country to accept a certain mark).

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