P. 1
Copyright and Trademark Law

Copyright and Trademark Law

|Views: 7|Likes:
Published by Alex Sandel

More info:

Published by: Alex Sandel on Jan 10, 2012
Copyright:Attribution Non-commercial


Read on Scribd mobile: iPhone, iPad and Android.
download as DOC, PDF, TXT or read online from Scribd
See more
See less





Trademark & Trademark Law

1. Introduction
A trademark or trade mark is a distinctive sign or indicator used by an individual, business organization, or other legal entity to identify that the products or services to consumers with which the trademark appears originate from a unique source, and to distinguish its products or services from those of other entities. A trademark is designated by the following symbols:


(for an Unregistered trade mark, that is, a mark used to promote or brand (for an unregistered service mark, that is, a mark used to promote or brand




® (for a registered trademark) 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 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 prosecutable only within the geographical area within which it has been used or in geographical areas into which it may be reasonably expected to expand.


properly called. ® may only be used by the owner of a mark following registration with the U. while unregistered trademark rights may be enforced pursuant to the common law tort of passing off. Different goods and services have been classified by the International (Nice) Classification of Goods and Services into 45 Trademark Classes (1 to 34 cover goods. such as the well known characteristics of celebrities. particularly in the United States. such that a trademark. General Aspects 2. In other words. 2. which can be enforced by way of an action for trademark infringement. and to unify classification systems around the world. and 35 to 45 services). The two represent the status of a mark and accordingly its level of protection. assuming there are no other trademark objections. The essential function of a trademark is to exclusively identify the commercial source or origin of products or services. When a trademark is used in relation to services rather than products. It should be noted that trademark rights generally arise out of the use or to maintain exclusive rights over that sign in relation to certain products or services.S. 2 . Patent and Trademark Office (USPTO or PTO) and designates such. The idea of 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. trademarks serve to identify a particular business as the source of goods or services. Certain exclusive rights attach to a registered mark. The proper manner to display either symbol is immediately following the mark in superscript style. The use of a trademark in this way is known as trademark use. indicates source or serves as a badge of origin. While ™ can be used with any common law usage of a mark.The term trademark is also used informally to refer to any distinguishing attribute by which an individual is readily identified. it may sometimes be called a service mark.1 Symbols Trademarks have two symbols: TM and SM.

brand. colour or combination of colors.2 Terminology Terms such as "mark". the mark becomes generic. packaging. 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 generalized trademark. numerical.1 Establishing Trademark Rights The law considers a trademark to be a form of property. however. signature. 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.2. It must be capable of graphical representation and must be applied to goods or services for which it is registered. trademark rights can be established through either or both means. sound. shape of goods. "brand" and "logo" are sometimes used interchangeably with "trademark". Specialized types of trademark include certification marks. name. "Trademark". Proprietary rights in relation to a trademark may be established through actual use in the marketplace. label. Certain jurisdictions generally do not recognize trademarks rights 3 . Legal Aspects 3. movement or any combination thereof which is capable of distinguishing goods and services of one business from those of others. smell. 3. collective trademarks and defensive trademarks. or through registration of the mark with the trademarks office (or "trademarks registry") of a particular jurisdiction. word. In some jurisdictions. letter. also includes any device.

the goods or services must occupy a highly significant position in the marketplace . 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 "colorfully" similar to the "registered" products or services. However. prevent use in relation to entirely dissimilar products or services. In the United States the only way to qualify for a federally registered trademark is to first use the trademark in commerce. An example may be a very large multinational brand such as "Sony" where a non-electronic product such as a pair of sunglasses might be assumed to have come from Sony Corporation of Japan despite not being a class of goods that Sony has rights in. In cases of dispute. The test is always whether a consumer of the goods or services will be confused as to the identity of the source or origin. A registered trademark confers a bundle of exclusive rights upon the registered owner. a quality which is sometimes known as territoriality. these rights are generally only enforceable in that jurisdiction. If trademark owners do not hold registrations for their marks in such jurisdictions. and in certain cases. 1923 and was called "literary and artistic property law.where this could be 40% or more market share for sales in the particular class of goods or services.arising through use. this disparity of rights is often referred to as "first to file" as opposed to "first to use. This law was amended and supplemented 4 . 3. the extent to which they will be able to enforce their rights through trademark infringement proceedings will therefore be limited. there is a range of international trademark laws and systems which facilitate the protection of trademarks in more than one jurisdiction. the first copyright law came into force on June 28." Other countries such as Germany offer a limited amount of common law rights for unregistered marks where to gain protection. Once trademark rights are established in a particular jurisdiction.2 Trademark Laws In Romania.

several times.g. 1956 these laws were expressly repealed by Decree no. 428 of November 13. whereby registration of a trademark with the Office for Harmonization in the Internal Market (Trade Marks and Designs) (i. trademark laws apply only in their applicable country or jurisdiction. Should anonymous or pseudonymous works. The law provides that the author of a work (literary. 1951 copyright on the copyright on works likely to be printed. a quality which is sometimes known as "territoriality". it is currently not possible to file and obtain a single trademark registration which will automatically apply around the world. After only two years came into effect Decree no. On June 27. see further below). If computer programs. The Community Trade Mark system is the trademark system which applies in the European Union. this law was repealed in part on January 14. 19 of February 16. 123 of September 1. 2005. The law applies to works created before the publication of the law. 1952.) has the right to that work throughout his lifetime plus 70 years. 2004 and 285 of Government Emergency Ordinance no. artistic. registration or enforcement of trademark rights in more than one jurisdiction on a regional or global basis (e. Thus. On an international basis. the Madrid and CTM systems. it is important to note that although there are systems which facilitate the filing.e. etc. In the case of works made by the collaboration of several authors. copyright expires 70 years after the death of the last of them. the term is 50 years instead of 70. Copyright shall inherit the legal heirs of the author. leads to a registration which is effective throughout the EU as a 5 . 17 for book publishing and distribution. It was amended and supplemented by Law no. copyright lasts 70 years from publication of that work. 1949 by Decree no. musical. Currently Romania is copyright protected by Law 8 / 1996. Like any national law. July 24. 1946 occurred on a publishing contract law and law on literary author. it was amended by Decree no. 321 copyright laws. OHIM. June 23. the trademarks office of the European Union).

Oppositions should be filed on the standard opposition form in any official language of the European Union. 6 . English. however. Worth noting that in most of the cases the opponents file their oppositions in English.g. If you are a European resident. however. it is strongly recommended by the OHIM. e. the CTM system and the national systems continue to operate in parallel to each other (see also European Union trade mark law). that is one of the working languages of the OHIM. you must have professional representative to the procedures before the OHIM. One of the tasks of a CTM owner is the monitoring of the later applications whether any of those is similar to his/her earlier trademark. However. The rights of the trademark holder are confirmed by the certificate of registration. If you reside outside the EU. in that a CTM registration applies indivisibly across all European Union member states. you don’t have to have professional representation to file an opposition.g. Spanish. Monitoring is not easy and usually requires professional expertise. the CTM system did not replace the national trademark registration systems. German. To conduct a monitoring there is the so-called Trademark Watching service where it can be checked if someone tries to get registered marks that are similar to the existing marks. The CTM system is therefore said to be unitary in character. the substantive part of the opposition (e.whole. the argumentations) can be submitted only in the language of the opposed application.3 Registering a Trademark Any individual or company can register a mark. 3.

h) statement on the three-dimensional shape of the brand. On request. j) a translation of the words constituting the trademark if they are not in Romanian. i) the trademark characters (letters or figures) other than those used in Romania. b) for foreign applicants: country. grouped according to "Classification of Nice". indicating the state and the first deposit. name of the country where the activity takes place. k) identifying the goods or services for which trademark registration is required.A trademark registration gives the holder an exclusive right to use the trademark for products and/or services for which registration was made. 7 . c) for an applicant legal entity: the respective country which legislation served as a framework for establishing the legal person. d) name and address. indicating the location and name of the exhibition and the dates of the products or services in that exhibition. including telephone and fax. the registration of a trademark can be renewed at the end of each term of protection of 10 years. which contains: a) for a Romanian applicant: the name and address of the applicant. for a term of 10 years from the date of the deposit and the right to prohibit third parties to use its trademark or fraudulent imitation. f) statement to invoke the priority of the exhibition. For the registration of a trademark it is required to file an application for registration with OSIM on a form. in Romanian. if the priority is claimed from an earlier application. the name of country of residence. g) indication of color or colors claimed to indicate the main parts of the brand. e) statement to invoke the right of priority.

These rights will cease if a mark is not actively used for a period of time. as applicable. or to enforce the registration in the event of infringement. failure to actively use the mark in the lawful course of trade.OSIM trademarks are protected only in Romania. may also expose the registration itself to become liable for an application for the removal from the register after a certain period of time on the grounds of "nonuse". An owner can at any time commence action for infringement against a third party as long as it had not previously notified the third party 8 . at the request of the proprietor. Duration of protection is 10 years mark. The application shall be accompanied by graphic or photographic reproduction of the mark in sizes up to 6 x 6 cm. normally 5 years in most jurisdictions. b) 5 reproductions of the trademark in black and white and 5 color reproductions of the trademark when claiming at least one color as a distinctive feature.4 Maintaining and Enforcing Trademark Rights Trademarks rights must be maintained through actual lawful use of the trademark. In the case of a trademark registration.l) signature of the applicant or his representative. the tax provided by law. It is not necessary for a trademark owner to take enforcement action against all infringement if it can be shown that the owner perceived the infringement to be minor and inconsequential. as follows: a) 5 reproductions of the trademark in black and white when color is not claimed as a distinctive element. 3. This is designed to prevent owners from continually being tied up in litigation for fear of cancellation. trade mark may be renewed at the end of each period of 10 years.

Unauthorized use of a registered trademark need not be intentional in order for infringement to occur. and a rival business starts using the same or a similar mark. although damages in an infringement lawsuit will generally be greater if there was an intention to deceive. If a trademark has been registered. If a trademark has not been registered. 9 . It will be for the third party to prove their use of the mark is substantial as it is the onus of a company using a mark to check they are not infringing previously registered rights. The extent to which a trademark owner may prevent unauthorized use of trademarks which are the same as or similar to its trademark depends on various factors such as whether its trademark is registered. infringing use may occur where the use occurs in relation to products or services which are not the same as or similar to the products or services in relation to which the owner's mark is registered. Passing off may provide a remedy in a scenario where a business has been trading under an unregistered trademark for many years. the similarity of the trademarks involved. then it is much easier for the trademark owner to demonstrate its trademark rights and to enforce these rights through an infringement action. For trademarks which are considered to be well known. and whether the owner’s trademark is well known.of its discontent following third party use and then failed to take action within a reasonable period of time (called acquiescence). the similarity of the products or services involved. some jurisdictions (especially Common Law countries) offer protection for the business reputation or goodwill which attaches to unregistered trademarks through the tort of passing off. The owner can always reserve the right to take legal action until a court decides that the third party had gained notoriety which the owner 'must' have been aware of.

unlike ordinary trademark law. A trademark is diluted when the use of similar or identical trademarks in other non-competing markets means that the trademark in and of itself will lose its capacity to signify a single source.. perhaps imagined if the trademark were to be encountered independently of any product (i. trademark law traditionally concerned itself with situations where an unauthorized party sold goods that are directly competitive with or at least related to those sold by the trademark owner. For example. It may take the form of a civil contract. Consequently. In other words.3. just the word Pepsi spoken. trademark dilution involves an unauthorized use of another's trademark on products that do not compete with. a famous trademark used by one company to refer to hair care products might be diluted if another company began using a similar mark to refer to breakfast cereals.e. Instead. or on a billboard). Trademark law is generally focused on the need for consumer protection. Copyright Contract Recovery of a work can take place directly and by contract.5 Dilution Trademark dilution is a trademark law concept permitting the owner of a famous trademark to forbid others from using that mark in a way that would lessen its uniqueness. The direct benefit is envisaged under its own achievement of the author. dilution protection extends to trademark uses that do not confuse consumers regarding who has made a product. dilution protection law aims to protect sufficiently strong trademarks from losing their singular association in the public mind with a particular product. 4. and have little connection with. Direct 10 . who brings his work to the public. those of the trademark owner. In most cases.

contract for public representation. Recently. under Article 24 paragraph 1. and conditions affecting the use of trademark law or legal successor. Other authors of the author examines the contract as a contract establishes the terms for use of the work of a third person on the national territory. as the contracts may be submitted only the author's economic rights. Copyright contract is a contract of civil law which regulates the conditions for using the author's work by others.capitalization Conditions set by free agreement of both parties in so the form of contract and property rights of the author. The author's moral rights can not be alienated and are imprescriptible economic rights in case of disposal. The main contracts that are popular with the purpose of copyright are publishing contract. in legal literature are presented different interpretations of his contract as the author explains EP Gavrilov will of the parties as the use of scientific works of literary art protected by copyright. 11 . the contract for the use of a work in a film and a work contract for use of radio or television. emerging new legislative items on the trademark suffered some changes and the very notion of copyright. namely. Legislation does not determine the author's contract. in connection with changes. As provided by law on copyright and related rights.

12 . the contract of use a work in film and broadcasting contract for a work by radio or television. the contract provides for the transmission of copyright work the following rights to the use of a third person: • • • The transfer of rights of recovery to work in a certain way. As mentioned above. Transmission of such rights only to a single person. Under Article 24 of Law on Copyright and Related Rights. b) Contracts are consensual c) There are bilateral agreements. Investing that person with the right to allow or prohibit the exploitation of others to work in analog mode. Thus. shall transmit only a single person his rights to use the work (in a certain way and within the limits set by law). the law establishes that the contract of the author about the transmission of copyright exclusive (exclusive license). Also. nonexclusive license allows the recipient to build just as with another person. the doctrine outside of these two types of contracts listed by the legislation. more so known types of contracts aimed trademark. same. the author of the work we endow the counter-agent or exclusive right to permit or prohibit the third parties to use the work after a certain method and limits of agreement. so the publishing contract. contract for public representation.Exclusive license under review the law on copyright and related rights. which was granted the right to exploit the same work. Transmission limits established in the contract work. All these contracts have the following feature: a) Cover the transmission temporary right to use a work. under the contract.

right on the author you capitalize the disposal. execution and distribution. The publishing contract temporarily cede his right to reproduction and dissemination of a work. f) A written form of the contract is mandatory. or in a show setting prior by sound or audiovisual recording on discs or tapes available in stores and setting prior to for broadcasting or televising. music and choreography often contracts are concluded directly with the authors but not with associations or agencies it represents. and even in these cases regulation is brief. first author's right to inform the public about the work through its reproduction.d) Are of consideration. the right to communicate the work to the public. assignment of right of representation should not (necessarily) be exclusive and the second observation is that in the field of drama. As is supported and this paper. namely the first is that unlike the publishing contract. within the law. Like other contracts for the realization of the trademark are relatively less regulated than legislation. representation. The way in which a work may be circulated to the public by radio and television can be different: the execution or direct representation in the studio. To characterize this contract in relation to other contracts is important to mention two observations. Representation contract is the contract that the author fails. dramatic-musical. e) They are personal signed contracts. choreography or pantomime.via this agreement the author assigns his right to communicate his work in radio or television. Contract of representation in public by which the author assigns the right of representation in public of a dramatic work. The contract to broadcast a work by radio and TV. is the subject of such contracts. in the conditions established. exercise 13 . Contract for use in the film of a work: through this contract the author transfers to exercise the right to use in the film of a film script or a musical composition.

him. the amount of remuneration and the method of calculating the amount of remuneration for each process of recovery of work. the term. as well as other terms that the parties will be essential and will not be contrary to the law. and on the other hand. 14 . the law recognized the author to draw economic benefits from the use of their works. as it is engaged in the acquisition the contracts through a claim against the contract which undertakes to pay remuneration due to the author for use of his work. In general. which is transmitted right . The written documents to ensure stability and continuity of relationships established by contract between the author and the person to build the economic rights of the author. In so the ability of the author to conclude a contract for recovery of its rights over the work created will be generally applicable provisions of law respecting the capacity of persons. in May should provide: how to exploit the work (specific rights that are transmitted by this contract. Conclusion of the contract's recovery of copyright should be just due to the fact that these contracts one party is a legal entity and therefore the usual form in which legal persons ends contracts is generally written. Generally copyright contract ends on a fixed term and limited. contracts for exploitation of copyright are intended work finished in a time of conclusion. Besides these copyright agreement under Article 25 of Law on Copyright and Related Rights. If the contract does not indicate the author's term of validity of copyright contract is considered concluded for a period of 3 years of completion. and for a period of 5 years for recovery contracts processed and translated works. the territory that is running right.

we set a very important clause in its essence. 15 . that any terms of contract of copyright that limits the author to create in future work on a particular topic or in a certain area is considered void. Article 25 paragraph 6 of the Law on Copyright and Related Rights.Terms of the authority to conflict with the provisions of this Law shall be considered void and replaced with the terms established by this law. namely.

com/trademark-registration-romania.wikipedia.ro/legislatie-itc/drept-de-autor/legea-dreptului-de-autor.legi-internet.org/wiki/Trademark#cite_note-12 http://en.org/wiki/Trademark_dilution http://www.References: http://www.wikipedia.romanianlawoffice.html 16 .htm http://en.

You're Reading a Free Preview

/*********** DO NOT ALTER ANYTHING BELOW THIS LINE ! ************/ var s_code=s.t();if(s_code)document.write(s_code)//-->