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A Trademark or Trade Mark

A Trademark or Trade Mark



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Published by: ridhimaamit on Aug 03, 2009
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trade mark 
, identified by the symbols(not yet registered) and®  (registered), is a distinctivesignor indicator used by an individual, business organization  or other legal entityto identify that theproductsand/or servicestoconsumerswith which the trademark appears originate from a unique source of origin, and to distinguish its products or services from those of other entities. A trademark is a type of intellectual property, and typically 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.The owner of a registered trademark may commencelegal proceedingsfor trademark  infringementto prevent unauthorized use of that trademark. However, registration is notrequired. The owner of a common law trademark may also file suit, but an unregisteredmark may be protect able only within the geographical area within which it has been usedor in geographical areas into which it may be reasonably expected to expand.The term
is also used informally to refer to any distinguishing attribute bywhich 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 maysometimes be called aservice mark,particularly in theUnited States.
Fundamental concepts
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
. Certainexclusive rightsattach to a registered mark, which can be enforced by way of anactionfor trademark infringement,while unregistered trademark rights may be enforced pursuant to the common law tort of  passing off .It should be noted that trademark rights generally arise out of the use and/or to maintainexclusive rights over that sign in relation to certain products or services, assuming thereare no other trademark objections.In order to register trademarks the different goods and services have been classified by theInternational (Nice) Classification of Goods and Servicesinto 45Trademark Classes  (from 1 to 34 includes goods, and from 35 to 45 services). The idea of this system is tospecify and limit the extension of the property right (Intellectual Property), bydetermining which goods or services are covered by the mark, and at the same time unifythe classification system in countries around the World...
Oldest trademarks
Zildjian, the cymbal and gong company owns the oldest continuously used U.S.trademark -- it should be noted, however, that the first two hundred years of the use of the
Zildjian trademark were in Turkey as the family moved to the United States.Venetianglass blowersare thought of as using the longest continuously used trademarks.Wieliczka, a salt mine inPoland, is reported to be the source of the oldest known trademark (circa 1241 A.D.) -- even though this trademark is really appellation of origin.Finally, in trademark treatises, it is usually reported that blacksmiths who made swords intheRoman Empireare thought of as being the first users of trademarks. Other notabletrademarks that have been used for a long time includeLöwenbräu, which claims usesince 1383, andStella Artois, which claims use since 1366.Registered Trademarks involve registering the trademark with the government. The oldestregistered trademarks in various countries include:
Australia: 1905 – a pine tree logo, still in use by Fisons plc. for chemicals.
Hong Kong: 1874 –  Nestle's Eagle Brand for condensed milk .
Japan: 1884 – a design of a seated figure, registered for pills and wound dressings.
United Kingdom: 1876 – TheBassRed Triangle was the first trademark to be registered under the Trade Mark Registration Act 1875.
United States: 1870 – an eagle logo used for paints by Averill Paints, which is nolonger in use.
The two symbols associated with U.S. trademarks ™ (thetrademark symbol) and ® (theregistered trademark symbol) represent the status of a mark and accordingly its level of  protection. While ™ can be used with any common law usage of a mark, ® may only beused by the owner of a mark following registration with the U.S. Patent and Trademark Office (USPTO or PTO) and designates such. The proper manner to display either symbolis immediately following the mark in superscript style.
Terms such as "mark", " brand" and "logo" are sometimes used interchangeably with "trademark". "Trademark", however, also includes any device, brand, label, name,signature, word, letter, numerical, shape of goods, packaging, combination of colors, or any combination thereof which is capable of distinguishing goods and services of one person from those of others. It must be capable of graphical representation and must beapplied to goods or services for which it is registered.Specialized types of trademark includecertification marks,collective trademarksand 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) issometimes known as agenericized trademark.If such a mark becomessynonymouswith that product or service to the extent that the trademark owner can no longer enforce its proprietary rights, the mark becomes generic.
Establishing trademark rights
The law considers a trademark to be a form of property. Proprietaryrightsin relation to a trademark may be established through actual
in themarketplace,or through
of the mark with the
(or "trademarks registry") of a particular  jurisdiction. In many jurisdictions, trademark rights can be established througheither or both means. Certain jurisdictions generally do not recognize trademarks rightsarising through use. However, unregistered trademarks may still be protected bycopyright laws inChinaand theEuropean Union. In the United States the only way to qualify for a federally registered trademark is to first use the trademark in commerce. If trademark owners do not hold registrations for their marks in such jurisdictions, the extent to whichthey will be able to enforce their rights throughtrademark infringement proceedings willtherefore be limited. In cases of dispute, this disparity of rights is often referred to as "firstto file" as opposed to "first to use". Other countries such as Germany offer a limitedamount of common law rights for unregistered marks where to gain protection, the goodsor services must occupy a highly significant position in the marketplace - where this could be 40% or more market share for sales in the particular class of goods or services.A registered trademark confers abundleof exclusive rightsupon the registered owner, including the right toexclusiveuse 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 registeredtrademark to prevent unauthorized use of the mark in relation to products or serviceswhich are identical or "colorfully" similar to the "registered" products or services, and incertain cases, prevent use in relation to entirely dissimilar products or services. The test isalways whether a consumer of the goods or services will be confused as to the identity of the source or origin. An example maybe a very large multinational brand such as "Sony"where a non-electronic product such as a pair of sunglasses might be assumed to havecome from Sony Corporation of Japan despite not being a class of goods that Sony hasrights in.Once trademark rights are established in a particular jurisdiction, these rights aregenerally only enforceable in that jurisdiction, a quality which is sometimes known as
. However, there is a range of international trademark laws and systemswhich facilitate the protection of trademarks in more than one jurisdiction.
Trademark search
To avoid conflicts with earlier trademark rights, it is highly recommended to conducttrademark searches before the
(or "trademarks registry") of a particular  jurisdiction —e.g.US Patent and Trademark Office. It may also be advisable to conduct a broader search as well, including databases that contain names of registeredcompanies and also an Internet search to determine if the desired trademark is either already registered as a domain name or otherwise being used. The reason for this is because trademark offices typically only search issued trademarks and pending

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