Definition
of trademark
A trademark is a type of intellectual property consisting of a recognizable sign, design, or expression which identifies products or services of a particular source from those of others. Trademarks used to identify services are usually called service marks. Trademarks may protect signs, in particular: words, letters, numerals, abbreviations, graphical representations, combinations of colors and the tints thereof, three-dimensional forms, shapes of the goods or the packaging, provided that they are distinctive, as well as the combinations of all the above indicated signs. A seal, a stamp and a hallmark shall not be considered to be trademarks.
Functions
of a Trademark
A trademark serves
the purpose of identifying the source or the origin of goods. Trademark
performs the following four functions.
· It identifies the product and it’s origin.
· It guarantee its quality.
· It advertises the product. The trademark
represents the product.
· It creates an image of the product in the
minds of the public particularly the consumers or the prospective consumers of
such goods.
How
is a trademark protected?
Trademarks are
protected by intellectual property rights.
At the national/regional level, trademark protection can be obtained
through registration, by filing an application for registration with the national/regional
trademark office and paying the required fees.
How
is a trademark registered?
At the
national/regional level, trademark protection can be obtained through
registration, by filing an application for registration with the
national/regional trademark office and paying the required fees. At the
international level, there are two options: either we can file a trademark
application with the trademark office of each country in which you are seeking
protection, or you can use WIPO’s Madrid System.
The application
must contain a clear reproduction of the sign filed for registration, including
any colors, forms, or three-dimensional features. The application must also
contain a list of goods or services to which the sign would apply. The sign must fulfill certain conditions in
order to be protected as a trademark or other type of mark. It must be
distinctive, so that consumers can distinguish it as identifying a particular
product. It must neither mislead nor deceive customers or violate public order
or morality. The rights applied for cannot be the same as, or similar to,
rights already granted to another trademark owner. This may be determined
through search and examination by the national office, or by the opposition of
third parties who claim similar or identical rights.
How
long is a registered trademark protected for?
The term of
trademark registration vary, but is usually ten years. It can be renewed
indefinitely on payment of additional fees. Trademark rights are private rights
and protection is enforced through court orders.
How
extensive is trademark protection?
Almost all
countries in the world register and protect trademarks. Each national or
regional office maintains a Register of Trademarks which contains full
application information on all registrations and renewals, facilitating
examination, search, and potential opposition by third parties. The effects of
such a registration are limited to the country concerned.
In order to avoid
the need to register separately with each national or regional office, WIPO
administers a system of international registration of marks. This system is
governed by two treaties, the Madrid Agreement Concerning the International
Registration of Marks and the Madrid Protocol.
What
are well-known marks and how are they protected?
The term
'well-known trademark' refers to a mark which has become so well-known to the
substantial segment of the public through its extensive and continuous use. Use
of the mark in relation to any other goods or services by another party may be
taken as a connection between the two parties.
In India, there
are specific provisions under the Trade Marks Act, 1999 and procedure to record
well known trade marks in India is provided under the Trademarks Rules, 2017
enacted under the Act, 1999.
As per the Trade
Marks Rules, 2017, an application is required to be filed (online) at the Trade
Marks Registry supported by evidence of use. The Trade Marks Registry, Mumbai
reviews the application filed to verify the filing requirements. Thereafter, hearing
is appointed at Mumbai Trade Marks Registry to present the case. If the hearing
officer is convinced that the trade mark should be declared as a well-known
trade mark, the trade mark is advertised in the Trademarks Journal (TMJ)
inviting objections from the general public within 30 days from the date of
publication in the TMJ. If, no objections are received, the trade mark is
advertised in the trade mark is advertised in the TMJ and included in the list
of well-known marks.
Examples are
Whirlpool, ENFIELD BULLET, HONDA, HORLICKS, Infosys, etc.
Domain
name
A domain name is
an identification string that defines a realm of administrative autonomy,
authority or control within the Internet. Domain names are used in various
networking contexts and for application-specific naming and addressing purposes. A trademark or service mark promotes and
protects the brand name, while a registered and protected domain name provides
protection against any unauthorized use of domain name by any person or entity. Often a business will use its business name,
brand name or another business identifier as its domain name.
Unlike trade
marks, domain names are:
·
global
·
unique by nature
·
can't be shared between two websites
Registering a
domain name doesn't automatically give us any rights over the matching trade
mark. Trade mark right can be obtained only by registering the domain name as a
trade mark.
|
Domain name |
Trade mark |
Definition |
A domain name is a unique string
of letters that is a part of an internet address. It is common for a domain
name to be the same or similar to a trade mark or a business name. |
A trade mark is any sign which can
tell apart your goods and services from those of your competitors. |
Uses |
Domain names are used to locate
and bring users to a specific website or place on the internet. |
A trade mark is used to identify
and distinguish your goods or services in the marketplace. |
Need to Register |
Yes. Can submit a registration to
any ICANN-accredited registrar.
Registering a domain name gives
you exclusive rights to use that domain for the duration of the license
period. |
No, but it in most cases it would
be wise to do so. You can protect a registered trade
mark by law. |
Do it expire? |
Yes. And can renew indefinitely
(subject to paying renewal fees on time). |
Yes. Generally after ten years,
after which we can renew the
trade mark registration. |
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