Trademark TM
A trademark is a type of intellectual property,
and typically comprises 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. A trademark or trade mark is a distinctive
sign or indicator of some kind which is used by an individual, business
organization or other legal entity to uniquely identify the source of
its products and/or services to consumers, and to distinguish its products
or services from those of other entities.
The owner of a registered trademark may commence legal proceedings for
trademark infringement to prevent unauthorized use of that trademark.
However, registration is not required. The owner of a common law trademark
may also file suit, but an unregistered mark may be protectable only
within the geographical area within which it has been used or in geographical
areas into which it may be reasonably expected to expand.
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.
Trademark law is primarily
derived from the English common law relating to goodwill and the tort
of passing off, which has been recognized in England since at least
1585. In the mid-19th century the Parliament of the United Kingdom recognized
an increased use of standard marks as badges of origin. After appointing
a select committee to investigate that business practice the Parliament
passed the Merchandise Marks Act in 1862. The Act met with much criticism
including that it confused the public and the legal fraternity who were
used to the common law approach.[clarify] In response the Parliament
passed the Trade Mark Registration Act in 1875 which is widely recognized
as the first system of trademark registration.
The system of registration
of trademarks is now used throughout the world and has been incorporated
into international law by, among other things, the Madrid Protocol.
The essential function of a trademark is to exclusively identify the
commercial source or origin of products or services, such that a trademark,
properly called, indicates source or serves as a badge of origin. The
use of a trademark in this way is known as trademark use. Certain exclusive
rights attach to a registered mark, which can be enforced by way of
an action for trademark infringement, while unregistered trademark rights
may be enforced pursuant to the common law tort of passing off.
It is important to note
that trademark rights generally arise out of the use and/or registration
(see below) of a mark in connection only with a specific type or range
of products or services. Although it may sometimes be possible to take
legal action to prevent the use of a mark in relation to products or
services outside this range (eg. for passing off), this does not mean
that trademark law prevents the use of that mark by the general public.
A common word, phrase, or other sign can only be removed from the public
domain to the extent that a trademark owner is able to maintain exclusive
rights over that sign in relation to certain products or services, assuming
there are no other trademark objections. For a case study in both concepts,
see Apple Corps and its disputes with Apple, Inc.
Terms such as "mark", "brand"
and "logo" are sometimes used interchangeably with "trademark". However,
the terms "brands" and "branding" raise distinct conceptual issues and
are generally more appropriate for use in a marketing or advertising
context.
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 generic 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 has become
generics.
As any sign which is capable
of performing the essential trademark function may qualify as a trademark,
the trademark concept extends to include a range of non-conventional
signs such as shapes (three-dimensional trademarks), sounds, smells,
moving images (eg. signs denoting movement, motion or animation), taste,
and perhaps even texture. Although the extent to which non-conventional
trademarks can be protected or even recognized varies considerably from
jurisdiction to jurisdiction, shape marks and sound marks are examples
of non-conventional marks which are in the process of migrating out
of this category.
The ™ symbol may be used
when trademark rights are claimed in relation to a mark, but the mark
has not been registered with the government trademarks office of a particular
country or jurisdiction, while the ® is used to indicate that the mark
has been so registered. It is not mandatory to use either symbol, although
the force of convention is such that the symbols are widely used around
the world. However, in various jurisdictions it is unlawful to use the
® symbol in association with a mark when that mark is not registered.
Either symbol is typically placed in the top left- or right-hand corner
of a mark.
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