Trademark

A trademark (also written trade mark or trade-mark) is a type of intellectual property that consists of a word, phrase, symbol, design, or combination thereof that identifies a product or service from a particular source and distinguishes it from others. Trademarks also extend to non-traditional marks like drawings, symbols, 3D shapes like product designs or packaging, sounds, scents, or specific colors used to create a unique identity. For example, Pepsi is a registered trademark associated with soft drinks, and the distinctive shape of the Coca-Cola bottle is a registered trademark protecting Coca-Cola's packaging design.

The primary function of a trademark is to identify the source of goods or services and prevent consumers from confusing them with those from other sources. Legal protection for trademarks is typically secured through registration with governmental agencies, such as the United States Patent and Trademark Office (USPTO) or the European Union Intellectual Property Office (EUIPO). Registration provides the owner certain exclusive rights and provides legal remedies against unauthorised use by others.

Trademark laws vary by jurisdiction but generally allow owners to enforce their rights against infringement, dilution, or unfair competition. International agreements, such as the Paris Convention and the Madrid Protocol, simplify the registration and protection of trademarks across multiple countries. Additionally, the TRIPS Agreement sets minimum standards for trademark protection and enforcement that all member countries must follow.

Terminology

The word trademark can also be spelled trade mark in places like the EU, UK, and Australia, and as trade-mark in Canada. But no matter how you spell it, it all means the same thing.

In the United States, the Lanham Act says a trademark is any word, phrase, symbol, design, or mix of these things used to show where goods or services come from. Trademarks help people know a brand and tell it apart from others. A service mark is a special kind of trademark used for services instead of products. The word trademark is used for both kinds.

The World Intellectual Property Organization (WIPO) says a trademark is a sign that helps people know which company’s goods or services they are buying. WIPO helps trademark owners use one application to register their trademark in many countries through the Madrid Protocol.

Almost anything that shows where goods or services come from can be a trademark. Besides words, slogans, or designs, trademarks can also be non-traditional marks like sounds, smells, or colors. Some special types of trademarks include:

• Trade dress: the way a product is designed and packaged. For example, the unique look of the Hard Rock Cafe restaurants is protected as trade dress.
• Collective mark: a trademark used by members of a group to show that their goods or services meet the group’s rules. For example, BEST WESTERN is used by its hotel members.
• Certification mark: a trademark used by approved businesses to show that their goods or services meet certain quality rules. For example, the ENERGY STAR mark is used by products that meet energy-saving rules set by the U.S. Environmental Protection Agency.

Trademarks should be used as describing words, not as nouns or actions, and they should stand out from normal text using special styles like bold letters or symbols. For example, say "LEGO® toy blocks" instead of "Lego's."

Trademark symbols

A trademark can be shown with these symbols:

• ™: For unregistered trademarks related to products.
• ℠: For unregistered service marks related to services.
• ®: For registered trademarks.

While ™ and ℠ are for unregistered marks, the ® symbol means the trademark is officially registered. Using the ® symbol for an unregistered trademark can be unfair and may lead to legal trouble.

Fundamental concepts

Trademark law helps protect people by making sure they know where products or services come from and what quality to expect. It stops people from being tricked about the origin of things they buy. Trademarks can encourage companies to keep making good products so they don’t lose their good name.

Trademarks are different from patents and copyrights. Patents protect new inventions for about 20 years, after which anyone can use the invention. Copyrights protect books, music, and movies for the life of the creator plus many years. Trademarks can last forever as long as they are used and renewed. But if a trademark is used too much to name a whole group of things, it can lose its special protection. For example, “escalator” was once a trademark but now names a type of moving walkway.

History

The idea of using marks to show who made or sold something goes back a very long time. Around 15,000 years ago, people in prehistory painted marks on animals that might have shown who owned them. About 6,000 years ago in ancient Egypt, marks were used on stone and even on jars of wine found in tombs.

The first laws about trademarks were made in the 1200s in England, when bakers had to use special marks on their bread. Modern trademark laws began in the 1800s in places like France and the United Kingdom. In the United States, important trademark laws were passed in 1881 and later updated in 1946 with the Lanham Act. These laws help protect brands so people know where products come from.

Establishing rights

Trademark protection can be gained by registering the mark or, in some countries, simply by using it in business. Most countries use a "first-to-file" system, meaning the first person to register a trademark gets the rights to it. However, in places like the United States, Canada, and Australia, using the mark in business can also establish some rights, though registration offers stronger protection.

For a trademark to be protected, it must be distinctive. This means it should help people recognize a product or service easily. Strong trademarks include made-up words, words that have no real connection to the product, or words that hint at a quality without stating it. Weak trademarks are those that describe the product too plainly or are just common names.

Top Madrid applicants, 2024

Applicant	Origin	2024	2023	2022	2021
L'Oreal	France	244	199	170	189
Novartis	Germany	193	110	131	94
Euro Games Technology	Bulgaria	141	118	120	93
Shiseido	Japan	124	103	98	93
Boehringer Ingelheim International GmbH	Germany	106	110	54	60
Egis Gyógyszergyár Zrt.	Hungary	103	49	30
Amorepacific Corporation	South Korea	96	31	47
Huawei	China	86	78	80	106
O'Reilly Automotive Stores, Inc.	United States	77	1
BYD Company Limited	China	73	13	21

Enforcing rights

When someone owns a special name, symbol, or design for their product or service, they need to protect it so others don’t copy it. This means they must take steps to keep the name special and different from others. They can do this by recording their name with special groups, watching for anyone trying to use a similar name, and sometimes even going to court to stop others from using it.

If another company uses a name or design that is too close to yours, this is called copying. To prove this in court, the owner must show they really own the special name, that their name came first, and that people might get mixed up about who made the product. There are also ways to defend against these claims, like showing the name was used fairly to describe a product or to talk about another company in an honest way. Some famous names, like COCA-COLA or GOOGLE, have extra protection so even if someone uses a similar name in a different way, it can still hurt the famous name’s special place in people’s minds.

Other aspects

When a trademark is sold, it often includes the business or assets linked to it. In the United States, selling just the trademark without any assets is not allowed. This ensures that the trademark stays connected to real products or services.

Owners can also let others use their trademarks under certain rules. This is called licensing. The owner must make sure the quality of the products stays the same when others use the trademark.

With the internet, trademark owners also protect their brands from being used in domain names. This helps prevent others from taking advantage of famous brand names online. Courts have made decisions to help balance these rights, making sure that trademark owners can protect their brands while allowing fair use of the internet.

International law

Trademark laws help protect brands, but they only work in the country where they are registered. This means a brand in one country needs to register separately in another country to get protection there.

To help with this, there are international agreements like the World Trade Organisation’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). These agreements help countries agree on common rules so trademarks can be protected more easily around the world.

One important system is the Madrid system, which lets trademark owners register their brand in many countries with just one application. This saves time and money. There are also treaties like the Trademark Law Treaty of 1994 and the Singapore Treaty on the Law of Trademarks, which make the process of registering and managing trademarks simpler and more consistent across countries.

In the European Union, there is a special system called the EU Trade Mark (EUTM). With this, registering a trademark with the European Union Intellectual Property Office gives protection across all EU countries. However, countries in the EU still have their own trademark systems too.

Some very famous brands can get extra protection even without registering in a country, known as “well-known trademark status.” This can help prevent others from using similar names in ways that might confuse customers or hurt the famous brand’s reputation.