Trade Mark Modalities
Syeda Fatima Hasan Gilani
Each time a person walks in with a question related with Trade mark registration or a Patent or Logo registration, I feel that it is all muffled in their minds. I know that this is the pun on which lawyers play, keeping people at bay from most information, but I feel that not sensitizing the masses and not dispersing knowledge shall do more harm than a mere loss of a few thousand bucks. It is important to share knowledge as wisdom shall only enter our lives once relevant information and knowledge pave the way for it.
I find my client juggling with various connotations and relevant definitions of Trade Mark and yet a simple click on the internet might just tell us all that a word, phrase, design or symbol which identifies and distinguishes the source of goods from one party to another is a trade mark or a “service mark”. A “trademark” is used generally to refer to a “service-mark” as well.
This might be useful to understand the basic but what is more important is to know is that a TM does not need to be registered. The entity can establish its right on the TM through laws of “common right”. However, registration definitely has its advantages, including a notice to the general public, legal presumption of ownership of the mark nationwide & an exclusive right to use the mark in connection with goods &services that you want to avail.
So now the question is that other than the general benefits what other paybacks may be availed through registration and then why getting trademarks registered? The answer to this is that a trade mark registration would qualify your business internationally as well as Locally. Jurisdictions require a businesses name to be registered either as a pre-requisite to obtain a certificate to do business or as Name-Filing. For e.g. you would file documents (in a state or local jurisdiction) to register an entity to do business (XYZ Inc. LLP, SME or Private enterprise), you would have to select a name which is not already been registered. Once all legalities have been completed and documents required filed properly, you would be issued a certificate to do business under the specified name. Sometimes when you have TM rights nationally; other parties may later try to intervene and prevent your use of the name if a confusion exists with their TM’s. when does this happen and how to cater to this issue? This is something that everyone holds a right upon. Even if a name is registered, one can challenge it but the entity who registered it shall have a better chance to win it.
When people think of Trademarks, they think about Coca-Cola, McDonald’s or Apple etc. These are good examples but the category is even broader you see, for e.g. the slogan “I’m lovin it” is a TM of
McDonald’s, while Coca-Cola was given a TM on the curvy shape of its bottles. Trademarks help
businesses and the people distinguish between products/services with ease. For e.g. anyone can make a soda, but only one can be called Coca-Cola, but just because a company has a TM for a certain product it doesn’t mean other companies cannot use the same name for a different product.
Trademarks can last forever. Unlike copyrights or patents; Trade-mark rights come from actual use and do not expire after a set period and can literally last forever as long as they are continued to be used in trade/commerce and certain documents are filed and fees paid at regular intervals. Hence, registered TM’s result in solidifying your right. If the TM is not registered and is only operating under local/state jurisdiction or permission to operate/ perform business, later a secondary party may end up forbidding you to perform business/operate under the name if any confusion exists or arises with their Trade Mark. Which then leaves no way out other than litigation, in which, if a party has registered TM has a brighter chance to win off the name. even though TM’s help the public and companies differentiate between products yet, just because a company has a TM on a certain product does not mean that another organization cannot use the same or a similar name for a different product. It comes down to how likely it is to cause confusion to the consumer. For e.g. a McDonald’s auto-parts can also exist as it not likely to cause confusion to the consumer.
Hence, if you are that person who walks in to some lawyer’s chamber to know regarding Trade Mark then getting basics will not harm at all, rather lets make your steps towards that chamber more comfortable and firm so that you know what you want and what you have come for.