A trademark (Commonwealth English: trade mark) is a distinctive name, phrase, symbol, design, picture, or style used by a business to identify itself and its products to consumers. If the business identified is a service rather than a product, the mark is sometimes called a service mark.
The main purpose of trademark law is to protect the public from being confused or deceived about the origin and quality of a product. This is accomplished by the mark owner preventing competitors from using a mark that the consuming public is likely to confuse with theirs, whether because it is identical (such as another computer manufacturer calling themselves "Apple") or sufficiently similar (such as a soft drink called "Popsi", to mimic "Pepsi" though the similarity need not be that great). A trademark is protected when the law allows the mark owner to stop competitors from infringement by these confusingly similar marks. Though registration is available in most countries, showing conclusive right to use the registered mark, many jurisdictions (in common law countries, at least) will still protect unregistered marks as long as the owner claiming infringement can prove ownership through earliest and consistent use.
It is not necessary for an infringing use to be intentional, though damages in an infringement lawsuit will be greater if there was intent to deceive.
Though these categories most easily apply to word marks, graphic elements are also evaluated similarly. For example, a pine tree shape is descriptive when used on pine-scented products.
Most jurisdictions exclude some categories of terms and symbols from ever gaining protection as trademarks. In addition to generic terms, described above, this may include marks used for official government business (such as national flags), marks that are deceptive regarding the nature or origin (including geographic origin) of the product, and marks that are offensive or obscene.
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. In other words, unlike ordinary trademark law, dilution protection extends to trademark uses that do not confuse consumers regarding who has made a product. Instead, dilution protection law aims to protect sufficiently strong trademarks from losing their singular association in the public mind with a particular product, perhaps imagined if the trademark were to be encountered independently of any product (i.e., just the word Pepsi spoken, or on a billboard).
Further, if a court rules that a formerly trademarked term has become "generic" through common use (such that the average consumer doesn't view it as a trademark), it may also be ruled invalid. For example, the Bayer company's trademark "Aspirin" has been ruled generic in the United States, so other companies may use that name for acetylsalicylic acid as well (though it is still a trademark in Canada). Xerox for copiers and Band-Aid for adhesive bandages are both trademarks that are at risk of becoming generic, which both brands actively try to fight. In order to prevent them from becoming generic, and to prove that they are attempting to defend the trademark, trademark owners often contact those who appear to be using the trademark incorrectly, from web page authors to dictionary editors, and request that they cease the improper usage. For example, Adobe sent e-mails to many web authors using the term "photoshopped" telling them that they should only use the term "modified by Adobe® Photoshop®." Xerox has also taken out print advertisements declaring that you cannot "xerox" a document, but you can copy it on a Xerox Brand copying machine. Such efforts may or may not be successful in preventing genericism in the long run, which depends less on the mark owner's efforts and more on how the public actually perceives and uses the mark. In fact, legally it is more important that the trademark holder visibly and actively seems to attempt to prevent its trademark from becoming generic, regardless of real sucsess.
One principle of trademark law in various jurisdictions in Europe is that of 'wrongful threats', which is designed to prevent large corporations from 'bullying' smaller companies. Where one person makes a threat to sue another for trade mark infringement, without a genuine basis or intent to carry out that threat, the threat itself becomes a basis for legal action. This power is used quite frequently; in addition to the obvious cases where the person threatening never had a trade mark it catches out foreign corporations who have a trade mark in their home jurisdiction but not in the country concerned and companies who have a trade mark which has lapsed or, if the mark is not strong enough for dilution protection, is not for the goods/services concerned. The final group who get caught by this provision are those claimants/plaintiffs who sue, and find that the court agrees with a defendant who claims the that mark is invalid for some reason (such as non-use). In that case the mark was never valid, and thus all threats to sue on it were groundless—the defendant can walk away with damages from the claimant.
While trademarks protect indications of product source, copyrights protect literary and artistic works, and patents protect useful designs. While those concepts of intellectual property may be separable in theory, in practice many features of products may be placed in more than one category. The shape of a bottle may be eligible for patent protection, for example, but also may come to serve as a unique indicator of the manufacturer and thus as trade dress. Titles and character names from books or movies may also be protectable trademarks while the work as a whole falls under copyright protection. Especially in countries such as the U.S. where copyrights and patents eventually expire into the public domain but trademarks do not, drawing these lines can be very necessary but extremely difficult for lawyers and judges.
Unlike patents and copyrights, which in theory are granted for one-off fixed terms, trademarks remain valid as long as the owner actively uses and defends them and maintains their registrations with their jurisdiction's trademark registry. This often involves paying a periodic renewal fee.
Unlike trademarks, there is no "abandonment" in copyright or patent law. A copyright or patent holder may "sit on" his creation and prevent its use. Additionally, copyright and patent owners do not necessarily have to actively police their rights. However, a failure to bring a timely infringement suit against a known infringer may give the defendant a defense of implied consent or estoppel when suit is finally brought.
The advent of the Domain Name System has led to attempts by trademark holders to enforce their rights over domain names that are similar or identical to their existing trademarks, particularly by seeking control over the domain names at issue. As with dilution protection, enforcing trademark rights over domain name owners involves protecting a trademark outside the obvious context of its consumer market, because domain names are global and not limited by goods or service.
This conflict was more easily resolved when the domain name user actually used his website to compete with the trademark owner. Cybersquatting, however, involves no such competition, but instead an unlicensed user registering the trademark as a domain name in order to pressure a payoff (or other benefit) from the lawful mark owner. Typosquatters—those registering common misspellings of trademarks as domain names--have also been targeted successfully in trademark infringement suits.
This clash of the new technology with preexisting trademark rights resulted in several high profile decisions as the courts of many countries tried to coherently address the issue (and not always successfully) within the framework of existing trademark law. As the website itself was not the product being purchased, there was no actual consumer confusion, and so initial interest confusion was a concept applied instead. Infringing domain names were analogized to a sign identifying one store but falsely placed in front of another, in the hopes that customers will in the end not care that they were duped or will at least give up on trying to reach the right store.
Most courts particularly frowned on cybersquatting, and found that it was itself a sufficiently commercial use (i.e., "trafficking" in trademarks) to reach into the area of trademark infringement. Most jurisdictions have since amended their trademark laws to address domain names specifically, and to provide explicit remedies against cybersquatters.
This international legal change has also led to the creation of ICANNUniform Dispute Resolution Policy and other dispute policies for specific countries (such as Nominet UK's DRS) which attempt to streamline the process of resolving who should own a domain name (without dealing with other infringement issues such as damages). This is particularly desirable to trademark owners when the domain name registrant may be in another country or even anonymous.
As with other trademarks, the domain name will not be subject to registration unless the proposed mark is actually used to identify the registrant's goods or services to the public, rather than simply being the location on the Internet where the applicants web site appears. Amazon.com is a prime example of a protected trademark for a domain name central to the public's identification of the company and its products.
Terms which are not protectable by themselves, such as a generic term or a merely descriptive term that has not acquired secondary meaning, do not become registrable when a Top-Level Domain Name (e.g. dot-COM) is appended to it. Examples of such domain names ineligible for trademark protection would be "SOFT.COM" (merely descriptive when applied to a product such as facial tissue), or "BANK.COM" (generic for banking services).
As a result of the WTO (formerly GATT) Trade Related Intellectual Property ("TRIPS") agreement, trademark law globally is gradually becoming harmonised. This does not mean that trademarks registered in one jurisdiction automatically become registered in another jurisdiction (although a 'Community Trade Mark' system whereby a single registration with the OHIM registry can lead to a trade mark covering the 15 (soon 24) members of the European Union does exist), but it does mean that many trademark laws are shared by various countries. For example, Art 15 of the TRIPs agreement defines "sign". This definition or variations thereof can be found in a variety of countries' trademark legislation.
The Madrid Agreement allows trademarks registered in one country to be registered in other countries and territories.
Unregistered trade marks—in many jurisidictions reputations or 'goodwill' are afforded some protection as unregistered trade marks. These rights would be common, for example, where a small business had been trading for many years without registering a trade mark. An attempt by a rival business to use the same name would still be prevented by the courts, despite the lack of a trade mark registration.
