What is a Trademark?by Lawbite
What exactly is a trademark? What is their fundamental purpose and how do we tell trademarks apart from other types of intellectual property (IP)? These are some of the business legal advice questions we get asked here at LawBite from time to time and this article is intended to help demystify this area of intellectual property law once and for all.
You should think of trademarks as ‘source identifiers’ or ‘badges of origin’ if you like, which enable customers to recognise products as originating from you. Whether it’s subconscious or not, we’re all influenced in our buying habits by the existence of trademarks and they are ultimately what generate brand loyalty. On buildings, labels, products and packaging, in the shops, at home, at work and on holiday, we are surrounded by trademarks day in and out.
Types of things which you can trademark protect
- Brand and product names (e.g. Microsoft and iPhone)
- Personal names (e.g. Jamie Oliver)
- Symbols, images and logos (e.g. the Nike tick, the multi-coloured ‘eBay’ letters, and Audi’s four interlocking circles)
- Slogans and phrases (e.g. Loreal’s ‘Because You’re Worth It’)
- Designs, letters, numerals (e.g. IBM)
- Shape or ‘get-up’ of goods or their packaging (e.g. the shape of the Coca-Cola bottle)
- Sounds (e.g. MGM’s roaring lion)
- Gestures (e.g. Asda’s double-tap gesture)
- Colours (e.g. T-Mobile’s magenta)
- Smells (e.g. “Flowery musk scent” in Verizon stores)
- Moving multimedia images (e.g. certain video game play mechanics)
7 categories of trademark which will be rejected
So does this mean that anything that fits into one of the above categories can be protected following a successful trademark application? Trademark applications which fall into any of the following categories will be outright rejected by the trademark office:
- trademarks which are devoid of any distinctive character
- marks which describe any characteristic of the goods or services (e.g. their quality, quantity, intended purpose or geographical origin)
- marks which have become customary or generic in the relevant trade (e.g. cello tape)
- shapes which results from the nature of the goods, are necessary to obtain a technical result, or which give substantial value to the goods
- marks which are contrary to public policy or to accepted principles of morality (e.g. swear words), are deceptive, or which constitute specially protected emblems (e.g. the Royal arms)
- marks involving applications made in bad faith (e.g. if the intention is to stop somebody else using the mark, rather than actually using it yourself)
- marks in which a third party already has rights in the same field of use
The trademark registration process
What actions should you take now?
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