Trademark: Definition and Meaning

To give a unique identification and a brand value, every business and service uses some sort of distinctive sign, design, or other such expression, commonly known as trademark. So, trademarks give brand value to respective businesses or services.

What is the Meaning of Trademark?

In legal term, a trademark can be defined as a simple word, phrase, symbol, or design that identifies the brand name and distinguishes the source of the goods or services of one party from those of others. A trademark is intended to protect a business's or company's reputation and goodwill by providing a unique identification to the respective business or company.

Furthermore, it also prevents others from using confusingly similar marks that might dilute or tarnish the reputation of the respective business or company.

Examples of Trademark

All of us identify dozens of companies and businesses by their logos only; likewise, there are hundreds of examples, such as Nike, which is the company that manufactures shoes and apparel, usually for athletes and other sportspeople, and has a unique symbol that is used to identify the Nike brand and distinguish it from other companies. Similarly, Adidas, Brooks, Fila, etc., all have their own unique logos.

If another company started using a similar logo or symbol to sell their own athletic shoes, it could create confusion among consumers and damage Nike's reputation, or any such company’s reputation, if the logo is being used maliciously. So, to protect one’s logo, usually the respective company registers it as a trademark, and after registration, the company has the legal right to prevent others from using it in connection with the sale of competing products. However, if someone is caught doing so, he or she can be penalised and will have to pay a heavy amount as compensation.

Where to Register

There is a government agency or office exclusively established for trademark registration purposes; therefore, trademarks can be registered with the respective government’s office, which gives the owner certain legal protections. In India, under the Trade Marks Act, 1999, the interested person can register his or her brand logo at the "Office of the Controller General of Patents, Designs & Trade Marks Department of Industrial Policy & Promotion, Ministry of Commerce & Industry, Government of India. Likewise, in the United States, trademarks are registered with the United States’ Patent and Trademark Office (USPTO). But remember, in order to qualify for registration, a trademark must be unique and distinctive and not already in use by another party.

Moreover, the symbol $\mathrm{^{TM}}$, that denotes the trademark symbol and the symbol $\mathrm{\circledR}$, which denotes the registered trademark symbol can be used to indicate trademarks. However, the symbol $\mathrm{\circledR}$, is strictly prohibited and only for use by the owner of a trademark who has been registered it.

Historical Background

In trademark treatises, it is customarily believed that blacksmiths who made swords in the Roman Empire were the first users of trademarks. In the mid-13th century, under the rule of Henry III of England, the first law governing trademarks was enacted, which mandated that all bakers to adopt a unique symbol for the bread they sold. Later in the late 19th century, the first contemporary trademark regulations came into picture as the world's first complete and modern trademark system was established in 1857 in France as "Manufacture and Goods Mark Act." Similarly, in Britain, the Merchandise Marks Act 1862 legislated, which made it a criminal offense to imitate another's trade mark "with intent to defraud or to enable another to defraud." Furthermore, in 1875, the Trade Marks Registration Act was legislated, which allowed for the first time the formal registration of trademarks at the UK Patent Office.

In 1938, the United Kingdom legislated the Trade Marks Act, which allowed registration based on "intent-to-use." It established an examination-based procedure, and established a system for application publishing. In addition to this, other innovative ideas introduced through the 1938 Act, which served as a template for similar laws worldwide, included "related trademarks," a consent to use system, a defence mark system, and a non-claiming right system.

On the other hand, for the first time in 1870, Congress legislated a federal trademark regime in the United States. This statute purported to be an exercise of Congress' copyright clause powers, but later on, the Supreme Court struck down the 1870 statute. In 1881, the US Congress again passed a new trademark act. The US Congress revised the Trademark Act in 1905. The Lanham Act of 1946 updated the law and has served, with several amendments, as the primary federal law on trademarks.

Usage and Significance of Trademark

Prima facie, a trademark gives identity to the respective brand or business owner. So, a person can identify the brand owner of a particular product or service through the trademark. Usually, a trademark is used by only the registered business owner (who registered it); however, it can be used by others under the given circumstances, i.e., through given rights or licencing agreements. But the unauthorised usage of trademarks by producing and trading counterfeit consumer goods is known as "brand piracy," and it is a penal offence.

Infringement of Trademark

In case of infringement; or in other words, if someone attempted to infringe it, the real owner of that trademark may pursue legal action against him. In many of the countries, it is a formal process, under which, the owner has to register his/her trademark, which generates an undisputed right to initiate legal action against the person who attempted to infringe it.

Trademark Style

A trademark is characteristically a letter, a word, a name, a phrase, a logo, a symbol, a design, an image, or a combination of any these elements.

Furthermore, there is a class of non-conventional trademarks that include marks that do not fall into these standard categories, such as those based on color, smell, or sound, such as jingles. Any such design, logo, symbol, phrase, or combination of these that is considered offensive is usually rejected according to a nation's trademark law.

Designation and Symbols

There is unique way to present and designate a trademark under which, it can be illustrated through the following symbols:

• $\mathrm{^{TM}}$: It is the "trademark symbol" (denoted by English letters “TM” as superscript), which is usually used to promote or brand goods, but the meaning of such a symbol is, the respective trademark is not registered.

• $\mathrm{^{SM}}$: It is the service mark symbol (denoted by the English letters "SM" as superscript). This also denotes an unregistered service mark.

• $\mathrm{\circledR}$: The letter "R" surrounded by a circle denotes that the respective trademark is registered.

Conclusion

A trademark, which could be a letter, a word, a phrase, a symbol, a logo, a design, or a combination of any of these, is a unique identity that distinguishes the source of the goods or services of one company from those of others. By using such a unique and distinguishable trademark, a company or business is able to build recognition, brand value, and goodwill with its customers, which can help to increase customer loyalty and sales.

In addition, trademarks can also help to prevent confusion in the marketplace by distinguishing the products or services of one company from those of another. Trademarks can also be an important source of revenue for a company, as they can be licenced to third parties for use in connection with their own products or services. Moreover, trademarks are important because they help to protect the brand identity of a company or product.

FAQs

Q1. What is the Oldest Trademark?

Ans. It is believed that the Bass Ale triangle, which is depicted on beer bottles in the 1882 painting by French artist Édouard Manet, A Bar at the Folies-Bergère, is the earliest known trademark.

Q2. Do Trademarks Expire?

Ans. No.

Unlike patents and copyrights, trademarks are not time-bound rights, but rather the owner of a trademark can use it as long as he maintains it or runs the business.

Q3. What are the Types of Trademarks that are not allowed?

Ans. All those trademarks that contain or comprise any such matter that is likely to hurt the religious sensibilities of any class or section of the nation are strictly prohibited. Besides, any such trademarks that contain or comprise scandalous or obscene matter are strictly prohibited from being used.