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Self-Assessment Question

SAQ 4: What were the main methods mentioned that a company could use to protect its investment in a trademark?

Type your answer here:

 

SAQ 4 Answer:

The speaker mentioned that the basis of trademark protection is in the laws of the country or region. Registering the trademark is often required before it can be protected but also it could become protected in some instances as a result of prolonged usage.

 

Trademarks typically identify individual enterprises as the origin of marked goods or services. Some countries provide for the registration of collective and certification marks, which are used to indicate the affiliation of enterprises using the mark, or which refer to identifiable standards met by the products for which a mark is used.

Collective marks usually belong to a group or association of enterprises. Their use is reserved to the members of the group or association. A collective mark therefore distinguishes the goods or services of members of the association from those of other undertakings. The function of the collective mark is to inform the public about certain particular

features of the product for which the collective mark is used. An enterprise which uses the collective mark may, in addition, use its own trademark. Example: in an association of architects or engineers, a member may use the logo of the association as well as the logo of the enterprise. A certificate mark is a mark indicating that the goods or services in connection with which it is used are certified by the proprietor of the mark in respect of the origin, mode of manufacture of goods, quality or other characteristics. The certification mark may only be used in accordance with the defined standards. Example: ISO 9000. The main difference between collective marks and certification marks is that the former may be used only by particular enterprises, for example, members of the association which owns the collective mark, while the latter may be used by anybody who meets the defined standards.

 

Some companies have successfully established, via their trademarks or service marks, worldwide renown. Subsequently, consumers can, without effort, recognize and identify their goods and services, their qualities and their features without referring to the location of the company in question. These trademarks are called well-known marks or famous marks. Examples: Sony, Versace, Louis Vuitton, etc. As you know, there may be companies which intend to take unfair advantage of those well-known marks by creating marks that are similar or that would create

confusion with the well-known ones, thus misleading consumers. To overcome this problem, the Paris Convention, the TRIPS Agreement, as well as many national laws, have provided for a special protection of well-known marks.

There is no straightforward definition of a well-known mark. What must be defined, however, are the factors to be considered in determining whether a mark is wellknown or not. These factors include the degree of knowledge or recognition of the mark in the relevant sector of the public and the duration, extent and geographical area of any use of the mark.



 

Many companies wish to use their trademark in many different countries, so listen to the next audio to see if it possible to get worldwide protection for a trademark.

Audio segment 6: Can you secure worldwide protection for a trademark with a single registration, or do you have to go to each country separately?

Well, you do have to go to each country separately as, like all intellectual property rights, trademarks are territorial rights, which basically means that their protection is obtained by national registration. There are certain regional

registration systems which make for easier registration of the trademarks and of course, there are also the international treaties, but all these systems ultimately involve registration in every single country and indeed every single territory: we should not forget that, while trademarks can be registered in countries, they can

also be registered in customs territories, and there are some other territories that are not recognized as countries.

You said customs territories; what did you mean?

Well, there are certain territories that are not recognized as States and cannot for instance, become members of the United Nations. However, there is a certain administrative structure in those territories and the registration of

trademarks may be possible. A good example would be Hong Kong, which has a trademark registration system different from that of the People’s Republic of China. So, if I want to protect my trademark in Hong Kong I have to go through the local registration procedure.

 

So it is necessary to protect the TM in all of the countries that you would wish to use it in. Unfortunately, there are considerable differences between national systems. WIPO has greatly contributed to efforts to make both national and regional systems for the registration of trademarks more "user-friendly" by harmonizing and

simplifying certain procedures. The Trademark Law Treaty (TLT) was adopted in 1994, and sets out the information nationals of one Member State must supply, and what procedures they must follow, to register trademarks in another Member State's TM Office.

 

Summary

“A trademark is a sign that individualizes the goods or services of a given enterprise and distinguishes them from its competitors.”

This section has covered the basics of trademarks. You have learned that a trademark is a word, a logo, a number, a letter, a slogan, a sound, a color, or sometimes even a smell which identifies the source of goods and/or services with which the trademark is used. Trademarks are one area of intellectual property and their purpose is to protect

the name of the product rather than the invention or idea behind the product.Trademarks can be owned by individuals or companies and should be registered at a governmental agency, which is usually referred to as the Trademarks Office. When a trademark is used in connection with services, it is sometimes referred to as a

“service mark”. Generally speaking, trademarks should be distinctive and should neither be generic nor merely descriptive of the goods or services they represent. For example, the word “vegetable” cannot be registered as a trademark of a supermarket, since it is certainly descriptive of items which a supermarket sells. In addition, it cannot be registered as a trademark for carrots, since it is a generic term for carrots. On the other hand, the word “vegetable” might well serve as a trademark for bicycles since it has little or nothing to do with bicycles.

Trademarks should preferably not be geographical or primarily a surname. Thus, “Paris” cannot serve as a trademark for perfume. In many countries, trademarks which comprise mere letters and/or numbers (i.e. the proposed trademark cannot be pronounced as a word or words or just has too few letters) or are surnames are considered to be indistinct. In some instances, trademark registration can still be obtained for trademarks

that are merely (i) descriptive, (ii) a surname, (iii) geographic or (iv) indistinct. Trademarks, also known as brand names, are part of everyday life. The average person sees or hears more than 1,500 trademarks each day! Just as your own name identifies and distinguishes you, the main purpose of a trademark is to identify the

source of a product and to distinguish that product from products coming from other sources. For example, a trademark helps you to choose between Ivory soap and Dial soap. It should be mentioned that collective marks and certification marks are also protected in a large number of countries.Famous marks or well-known marks have also been granted a special protection.

Trademarks usually ensure a consistent level of quality – be it good or bad. A mark helps you to use your experience either to return to a desirable product or service or to avoid an undesirable one.

Legislative Texts:

• Paris Convention

• Trademark Law Treaty (TLT)

• TRIPS Agreement


Date: 2016-01-14; view: 712


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