NationMaster - Encyclopedia: ®

A trademark (Commonwealth English: trade mark)^{[1] (http://en.wikipedia.org/wiki/Trademark#fn_styling)} is a distinctive sign of some kind which is used by a business to identify itself and its products or services to consumers, and to set the business and its products or services apart from those of other businesses. A trademark is a type of intellectual property, and in particular, a type of industrial property. In law, particularly in common law jurisdictions, intellectual property or IP refers to a legal entitlement which sometimes attaches to the expressed form of an idea, or to some other intangible subject matter. ... For copyright issues in relation to Wikipedia itself, see Wikipedia:copyrights. ... Industrial design rights are intellectual property rights that protect the visual design of objects that are not purely utilitarian. ... A patent is a set of exclusive rights granted by a government to a person for a fixed period of time in exchange for the regulated, public disclosure of certain details of an invention. ... A trade secret is a confidential practice, method, process, design, or other information used by a company to compete with other businesses. ... Sui generis is a (post) Latin expression, literally meaning of its own gender/genus or unique in its characteristics. ... Database rights are a form of exclusive right introduced by European Union Law to those countries which follow EU Law in 1997. ... The United States Code defines a mask work as a series of related images, however fixed or encoded, having or representing the predetermined, three-dimensional pattern of metallic, insulating, or semiconductor material present or removed from the layers of a semiconductor chip product, and in which the relation of the... Plant breeders rights, also known as plant variety rights (PVR), are intellectual property rights granted to the breeder of a new variety of plant. ... Commonwealth English is intended as a collective term for the perceived standard English language used in the Commonwealth of Nations1, applying in theory to Australian English, British English, Caribbean English, Canadian English, Hiberno-English (Irish English)2, Hong Kong English, Indian English (includes Pakistani English), New Zealand English, and South... In semiotics, a sign is generally defined as something that stands for something else, to someone in some capacity (Marcel Danesi and Paul Perron, Analyzing Cultures). It may be understood as a discrete unit of meaning. ... Business refers to at least three closely related commercial topics. ... This article is about a term used in economics. ... In economics, consumers are individuals or households that consume goods and services generated within the economy. ... In law, particularly in common law jurisdictions, intellectual property or IP refers to a legal entitlement which sometimes attaches to the expressed form of an idea, or to some other intangible subject matter. ... Industrial property is a subset of intellectual property comprising trademarks, patents and designs, so-called because intellectual property rights such as these are often created and used in an industrial or commercial context. ...

A trademark may comprise a name, word, phrase, logo, symbol, design, image, or a combination of one or more of these elements. There are also a range of non-conventional trademarks which do not fall into these standard categories. A logotype, commonly known as a logo, is the graphic element of a trademark or brand, which is set in a special typeface/font, or arranged in a particular, but legible, way. ... A non-conventional trademark (also nontraditional trademark) is any new type of trademark which does not belong to a pre-existing, conventional category of trade mark, and which is often difficult to register, but which nevertheless fulfills the essential trademark function of uniquely identifying the commercial origin of products or...

The essential function of a trademark is to uniquely identify the commercial source or origin of products or services, such that a trademark, properly called, indicates source or acts as a badge of origin. The use of a trademark in this way is known as trademark use and a trademark owner seeks to enforce its rights or interests in a trademark by preventing unauthorised trademark use.

Terminology and symbols

Terms such as 'mark', 'brand' and 'logo' are sometimes used interchangeably with 'trademark'. However, the terms 'brands' and 'branding' raise distinct conceptual issues and are generally more appropriate for use in a marketing or advertising context. The Red Triangle logo of Bass pale ale is one of the oldest logos in the world and the first trademark registered in Britain in 1876. ... The Bass Red Triangle, the first trademark in Britain, has been used for over 150 years to mark bottles of their pale ale. ... 1876 is a leap year starting on Saturday. ... This article is about the concept in marketing. ... A logotype, commonly known as a logo, is the graphic element of a trademark or brand, which is set in a special typeface/font, or arranged in a particular, but legible, way. ... Traditionally, marketing has been a term applied to the craft of linking the producers (or potential producers) of a product or service with customers, both existing and potential. ... Generally speaking, advertising is the paid promotion of goods, services, companies and ideas by an identified sponsor. ...

When a trademark is used in relation to services rather than products, it may sometimes be called a service mark, particularly in the United States. Other specialised types of trademark include certification marks, collective trade marks and defensive trade marks. If a trademark has become synonomous with the generic name of the products or services to which it relates, it is sometimes referred to as a genericized trademark. A trademark used to identify a service rather than a product is called a service mark (SM). ... A certification mark is a type of trademark whereby a trader uses the mark to indicate the origin, material, mode of manufacture of products, mode of performance of services, quality, accuracy of other characteristics of products or services. ... Definition Collective trade marks are trade marks owned by an organisation (such as an association), whose members use them to identify themselves with a level of quality or accuracy, geographical origin, or other characteristics set by the organisation. ... Note: this page refers to dilution in the sense of trademark law. ... Synonyms (in ancient Greek syn συν = plus and onoma όνομα = name) are different words with similar or identical meanings. ... Generic can be used in the following contexts: In computer science, generics (or genericity) are concepts used in programming. ... A genericized trademark (Commonwealth English genericised trade mark), sometimes known as a generic trade mark, generic descriptor or proprietary eponym, is a trademark or brand name which has become synonymous with the general or formal term for a particular type of product or service, to the extent that it often...

As any sign which is capable of performing the essential trademark function may qualify as a trademark, the trademark concept extends to include a range of non-conventional signs such as shapes (ie. three-dimensional trademarks), sounds, smells, moving images (eg. signs denoting movement, motion or animation), taste, and perhaps even texture. However, the extent to which such non-conventional trademarks can be protected or even recognised varies considerably from country to country^{[2] (http://en.wikipedia.org/wiki/Trademark#fn_non-conventional)}. This article or section should include material from Sound logo A sound trademark is a trademark which consists of sounds, rather than visual images or words. ...

The use of the ™ symbol next to a trademark, usually in the top right-hand corner, means that the trademark owner claims certain exclusive rights in relation to that trademark. Although this symbol only denotes that the owner holds unregistered trade mark rights, such rights can be enforced by way of an action for passing off. The ® symbol is used to denote that a trademark has been registered with the government trade marks office or registry of a particular country or jurisdiction. Upon registration a trademark can be enforced by way of an action for infringement. An exclusive right is the power, granted by the state to persons to prevent (exclude) all others from taking certain actions. ... Look up Action in Wiktionary, the free dictionary Action can be used in different contexts: Action movie Action game Action Comics, an American comic book series featuring Superman Action, a British comics anthology of the 1970s In physics, the action is a crucial concept in Lagrangian mechanics In philosophy, action... Passing off is a common law tort. ... Registry has several meanings, all of which relate to its general meaning. ... A country, a land, or a state, is a geographical area that connotes an independent political entity, with its own government, administration, laws, often a constitution, police, military, tax rules, and population, who are one anothers countrymen. ... The term jurisdiction has more than one sense. ... In a legal context, an infringement refers to the violation of a law or a right. ...

Establishing trademark rights — use and registration

Trademark rights, such as the right to exclusive use of a trademark, can be established through actual use in the marketplace or registration with a trade marks office. In general, such rights will only apply in the jurisdiction where the trademark is used or registered, a quality which is sometimes known as territoriality. However, there are a range of international trademark laws and systems which facilitate the protection of trademarks around the world (see International trade mark laws below). In a mathematics the term exclusive denotes that the endpoints of a set are NOT included within that set. ... A marketplace is the space, actual or metaphorical, in which a market operates. ... The Bass Red Triangle, was the first trademark registered in Britain in 1876. ...

A trademark may be registrable (ie. be eligible for registration) if amongst other things it satisfies the essential trademark function, and is not generic or descriptive. A trademark may have "distinctive character" without being registrable.

Registrability can be perceived as a continuum, with generic and descriptive marks at one end of this continuum, "fanciful" or "invented" marks (eg. Kodak) at the other end, and suggestive marks and arbitrary marks laying somewhere in between these two points. Suggestive marks are marks which have some descriptive quality but which require imagination on the part of the consumer to identity this quality (eg. the Mercury image for FTD suggesting delivery speed) and arbitrary marks are usually common words which are used in a meaningless context (eg. Apple for computers). Eastman Kodak Company (NYSE: EK) is a large multinational public company producing photographic equipment. ... Apple Computer, Inc. ...

Therefore marks which identify or describe a product or service, or which are in common use, or which are used as geographical indications, generally cannot be registered as trademarks, as they must remain available for use by anyone (eg. a generic term such as "apple"; or descriptive terms such as "red" or "juicy" generally could not be registered in relation to apples). Although these categories are most easily applied in relation to word marks, graphic elements are evaluated on a similar basis. For example, a pine tree shape is descriptive when used on pine-scented products. A geographical indication (sometimes abbreviated to GI) is a name or sign used on a particular product which corresponds to a specific geographical location or origin (eg. ... Species Malus domestica Malus sieversii The apple is the pomaceous fruit of plants of the genus Malus in the family Rosaceae, and is one of the most widely cultivated tree fruits. ... Generally speaking, advertising is the paid promotion of goods, services, companies and ideas by an identified sponsor. ...

However, in some jurisdictions even trademarks which are otherwise generic or descriptive may be registrable where the public associates these trademarks with a particular commercial origin or source. This association is sometimes known as secondary meaning (eg. in the United States) or as acquired distinctiveness (eg. in Common Law jurisdictions such as Australia, Hong Kong and the United Kingdom). In some jurisdictions, secondary meaning may be established if the trademark owner can demonstrate exclusive use of the mark for a defined period of time. Evidence of use and tools such as consumer surveys may also be used to show that the public will chiefly associate the descriptive mark with the trademark owner and its products or services. This article concerns the common-law legal system, as contrasted with the civil law legal system; for other meanings of the term, within the field of law, see common law (disambiguation). ...

Most jurisdictions exclude some categories of terms and symbols from trademark protection entirely. In addition to generic terms, excluded marks include marks used for official government business (eg. national flags; the symbols of the modern Olympic Games), marks that are deceptive as regarding the nature or origin (including geographic origin) of the products or services to which they apply, and marks that are considered morally offensive or obscene. A flag is a piece of cloth flown from a pole or mast, usually intended for signaling or identification. ... For months before the Olympic Games, runners relay the Olympic Flame from Olympia to the opening ceremony. ... Obscenity has several connotations. ...

Maintaining trademark rights — abandonment and genericide

Trademarks rights must be maintained through actual use of the trademark. These rights will diminish over time if a mark is not actively used. In the case of a trademark registration, failure to actively use the mark, or to enforce the registration in the event of infringement, may also expose the registration itself to removal from the register after a certain period of time.

All jurisdictions with a mature trademark registration system provide a mechanism for removal in the event of such non use, which is usually a period of either three or five years. The intention to use a trade mark can be proven by a wide range of acts as shown in the Wooly Bull and Ashton v Harlee cases.

In the US, failure to use a trademark for this period of time, aside from the corresponding impact on product quality, will result in abandonment of the mark, whereby any party may use the mark. An abandoned mark is not irrevocably in the public domain, but may instead be re-registered by any party which has re-established exclusive and active use, including the original mark owner. Further, if a court rules that a trademark has become "generic" through common use (such that the mark no longer performs the essential trademark function and the average consumer no longer considers that exclusive rights attach to it), the corresponding registration may also be ruled invalid. The public domain comprises the body of all creative works and other knowledge—writing, artwork, music, science, inventions, and others—in which no person or organization has any proprietary interest. ... A genericized trademark (Commonwealth English genericised trade mark), sometimes known as a generic trade mark, generic descriptor or proprietary eponym, is a trademark or brand name which has become synonymous with the general or formal term for a particular type of product or service, to the extent that it often...

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 (although it is still a trademark in Canada). Xerox for copiers and Band-Aid for adhesive bandages are both trademarks which are at risk of succumbing to genericide, which the respective trademark owners actively seek to prevent. In order to prevent marks becoming generic, 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. The proper use of a trademark means using the mark as an adjective, not as a noun or a verb [3] (http://www.inta.org/info/faqsU.html) [4] (http://www.3com.com/corpinfo/en_US/legal/trademark/prop_usage_tmb.html#1) [5] (http://www.adobe.com/misc/trade.html), though for certain trademarks, use as nouns and, less commonly, verbs is common. 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® software." Xerox has also purchased 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 success. Bayer may also refer to Bayer Leverkusen. ... A very old bottle of Aspirin Aspirin or acetylsalicylic acid is a drug in the family of salicylates, often used as an analgesic (against minor pains and aches), antipyretic (against fever), and anti-inflammatory. ... A very old bottle of Aspirin Aspirin or acetylsalicylic acid is a drug in the family of salicylates, often used as an analgesic (against minor pains and aches), antipyretic (against fever), and anti-inflammatory. ... Xerox Corporation (NYSE: XRX) is the worlds largest supplier of toner-based (dry ink) photocopier machines and associated supplies. ... Band Aid can refer to: BAND-AID, a brand of sticking plaster Band Aid, a musical ensemble raising money for famine relief. ... An adjective is a part of speech which modifies a noun, usually making its meaning more specific. ... A noun, or noun substantive, is a word or phrase that refers to a person, place, thing, event, substance or quality. ... A verb is a part of speech that usually denotes action (bring, read), occurrence (to decompose (itself), to glitter), or a state of being (exist, live, soak, stand). Depending on the language, a verb may vary in form according to many factors, possibly including its tense, aspect, mood and voice. ... Adobe Systems (NASDAQ: ADBE) is a computer software company headquartered in San Jose, California that was founded in December 1982 by John Warnock and Charles Geschke. ...

Enforcing trademark rights

The extent to which a trademark owner may prevent unauthorized use of trademarks which are the same as or similar to its trademark depends on various factors such as whether its trademark is registered, the similarity of the trademarks involved, the similarity of the products and/or services involved, and whether the owner’s trademark is well known.

If a trademark has not been registered, some jurisdictions (especially Common Law countries) offer protection for the business reputation or goodwill which attaches to unregistered trade marks through the tort of passing off. Passing off may provide a remedy in a scenario where a business has been trading under an unregistered trade mark for many years, and a rival business starts using the same or a similar mark. This article concerns the common-law legal system, as contrasted with the civil law legal system; for other meanings of the term, within the field of law, see common law (disambiguation). ... Business refers to at least three closely related commercial topics. ... Reputation is the general opinion of the public towards a person, a group of people, or an organization. ... For the article about the charity: see Goodwill Industries Goodwill is an accounting concept that describes the value of a business entity not directly attributable to its physical assets and liabilities. ... In the common law, a tort is a civil wrong for which the law provides a remedy. ... Passing off is a common law tort. ...

If a trademark has been registered, then it is much easier for the trademark owner to demonstrate its trademark rights and to enforce these rights through an infringement action. Unauthorised use of a registered trade mark need not be intentional in order for infringement to occur, although damages in an infringement lawsuit will generally be greater if there was an intention to deceive. A lawsuit is a civil action brought before a court in which the party commencing the action, the plaintiff, seeks a legal remedy. ...

For trademarks which are considered to be well known, infringing use may occur where the use occurs in relation to products or services which are not the same as or similar to the products or services in relation to which the owner's mark is registered.

Wrongful or groundless threats of infringement

Various jurisdictions have laws which are designed to prevent trademarks owners from making wrongful threats of trademark infringement action against other parties. These laws are intended to prevent large or powerful companies from intimidating or harassing smaller companies.

Where one party makes a threat to sue another for trademark infringement, but does not have a genuine basis or intention to carry out that threat, or does not carry out the threat at all within a certain period, the threat may itself become a basis for legal action.

Other aspects

Consumer protection and confusion

One of the public policy objectives given for trademark law is consumer protection, that is, to prevent the public from being misled as to the origin or quality of a product or service. A trademark owner also uses trademark law to prevent unauthorised third party use of a mark which is identical to the owner’s mark, or which is so similar that use of the other party’s mark would result in a likelihood of confusion. Law (a loanword from Old Norse lag), in politics and jurisprudence, is a set of rules or norms of conduct which mandate, proscribe or permit specified relationships among people and organizations, provide methods for ensuring the impartial treatment of such people, and provide punishments for those who do not follow...

For example, a computer manufacturer other than Apple which makes products using the APPLE trademark, or a soft drink manufacturer which calls its product 'Popsi' (in imitation of the PEPSI trademark; although the similarity does not need to be this close) may amount to trademark infringement where the owner holds a trademark registration. Apple Computer, Inc. ...

By identifying the source of goods or services, trademarks help consumers to identify their expected quality and assist in identifying goods and services that meet the individual consumer's expectations. Trademarks also fix responsibility. Without trademarks, a seller's mistakes or low quality products would be untraceable to their source. Therefore, trademarks provide an incentive to maintain a good reputation for a predictable quality of goods. For example, a consumer that purchases and likes Nabisco Premium saltines has a reasonable expectation that Nabisco Premium saltines found anywhere in the United States will be of uniform taste and quality. Failure to maintain consistent quality can lead to abandonment of a mark, when the law will no longer protect the trademark because it has ceased to function as an indicator of a particular product. Marks may also be abandoned by "naked licensing", which involves the owner granting rights to use the mark to another party without sufficiently controlling how or on what they use it. The mark is then released for general use. (see also below under Policing Trademarks) Nabisco logo Nabisco is a U.S.-based manufacturer of cookies and snacks, including brands such as Chips Ahoy, Fig Newtons, Mallomars, Oreos, Ritz Crackers, Teddy Grahams, Triscuits, and Wheat Thins. ...

Because the emphasis is on consumer protection, the user of a trademark does not "own" the mark in the same way that it may own a copyright. With some exceptions (see below under Dilution), the protection of a trademark is limited to certain markets, which can be defined by either the type of product or service (grouped according to the Nice Classification), or even a particular geographic area. For example, though "Lexis" and "Lexus" are confusingly similar marks, using the former for a news and information service and the latter for luxury cars means that the public is not likely to confuse one while looking for the other, and so neither can restrict the other's use. A trademark may also be limited geographically, if it can be determined that products or services do not compete because of the physical separation of their markets. Considering the national and even global nature of most manufacturers and distributors, the reach of print and broadcast advertising, and the disregard of the internet for geographic boundaries, this limitation is likely to be an issue in fewer and fewer cases. The market-specific limitation is not interpreted strictly. Instead, attention is given to how closely related markets are (such as pancake mix and pancake syrup), or how likely it is that the mark owner will "bridge the gap" and move into the other product or geographic market. LexisNexis is a popular searchable archive of content from newspapers, magazines, legal documents and other printed sources. ... Lexus is a brand name used by the Toyota Motor Corporation in North America, The Middle East, Europe, Australia, and New Zealand for luxury automobiles. ...

Dilution

Main article: Dilution Note: this page refers to dilution in the sense of trademark law. ...

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 (e.g., just the word Pepsi spoken, or on a billboard). The current Pepsi logo Pepsi or Pepsi-Cola, is a carbonated cola soft drink manufactured by PepsiCo, and the principal rival of Coca-Cola. ...

Transfer and licensing of trademarks (US law)

In the US, a trademark cannot be sold independently of the underlying goodwill. To allow such a 'sale in gross' would, the courts have said, 'be a fraud upon the public'. Thus, a trademark right can be sold, and a valid assignment made on the trademark registry, only if the conveyance of the mark is accompanying the sale of an underlying asset. Examples of assets whose sale would ordinarily support the assignment of a mark include the sale of the machinery used to produce the goods that bear the mark, or the sale of the corporation (or subsidiary) that produces the trademarked goods. For the article about the charity: see Goodwill Industries Goodwill is an accounting concept that describes the value of a business entity not directly attributable to its physical assets and liabilities. ...

Many countries allow trademarks to be licensed. Under US law, the licensor must monitor the quality of the goods produced under license or risk losing the mark. A license without quality control falls under the doctrine of 'naked licensing' which the courts consider to be a form of abandonment. Trademark licenses are commonly for a limited period and include appropriate warranties of quality by the licensee plus rights to inspect and monitor for quality control by the licensor.

Comparison with patents, designs and copyright

While trademark law seeks to protect indications of the commercial source of products or services, patent law generally seeks to protect new and useful inventions, and registered designs law generally seeks to protect the look or appearance of a manufactured article. Trademarks, patents and designs collectively form a subset of intellectual property known as industrial property, because they are often created and used in an industrial or commercial context. A patent is a set of exclusive rights granted by a government to a person for a fixed period of time in exchange for the regulated, public disclosure of certain details of an invention. ... In law, particularly in common law jurisdictions, intellectual property or IP refers to a legal entitlement which sometimes attaches to the expressed form of an idea, or to some other intangible subject matter. ...

By comparison, copyright law generally seeks to protect original literary, artistic and other creative works. For copyright issues in relation to Wikipedia itself, see Wikipedia:copyrights. ...

Although intellectual property laws such as these are theoretically distinct, more than one type may afford protection to the same article. For example, the particular design of a bottle may qualify for copyright protection as a nonutilitarian [sculpture], or for trademark protection based on its shape, or the 'trade dress' appearance of the bottle as a whole may be protectable. Titles and character names from books or movies may also be protectable as trademarks while the works from which they are drawn may qualify for copyright protection as a whole.

Drawing these distinctions is necessary but often challenging for the courts and lawyers, especially in jurisdictions such as the United States, where patents and copyrights will eventually expire into the public domain but trademarks do not. 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 the applicable jurisdiction's trade marks office. This often involves payment of a periodic renewal fee. The public domain comprises the body of all creative works and other knowledge—writing, artwork, music, science, inventions, and others—in which no person or organization has any proprietary interest. ...

As a trademark must be used in order to maintain rights in relation to that mark, a trademark can be 'abandoned' or its registration can be cancelled or revoked if the mark is not continuously used. By comparison, patents and copyrights cannot be 'abandoned' and a patent holder or copyright owner can generally enforce their rights without taking any particular action to maintain the patent or copyright. Additionally, patent holders and copyright owners may not necessarily need to actively police their rights. However, a failure to bring a timely infringement suit or action against a known infringer may give the defendant a defense of implied consent or estoppel when suit is finally brought. Estoppel is a legal doctrine proposing that any person who asks the courts to enforce a legal remedy should have a clear conscience. ...

Trademarks and Domain Names

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. The Domain Name System or DNS is a system that stores information about hostnames and domain names in a kind of distributed database on networks, such as the Internet. ...

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. Cybersquatting is a derogatory term used to describe the practice of registering and claiming rights over internet domain names which are, arguably, not for the taking. ... Typosquatting is a form of cybersquatting which relies on the chances that a person who enters a website address into a web browser will accidentally enter an incorrect website address and be led to an alternative address which the cybersquatter owns. ...

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 ICANN Uniform 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. ICANN is the Internet Corporation for Assigned Names and Numbers. ... UDRP - Uniform Domain Name Resolution Policy A document used by the Internet Corporation for Assigned Names and Numbers (ICANN) for the purpose of creating guidelines for use when disputes arise regarding the registration of internet names (domain names). ... Nominet UK is the . ... The abbreviation Drs. ...

Registrants of domain names also sometimes wish to register the domain names themselves (e.g., "XYZ.COM") as trademarks for perceived advantages, such as an extra bulwark against their domain being hijacked, and to avail themselves of such remedies as confusion or passing off against other domain holders with confusingly similar or intentionally misspelled domain names. Passing off is a common law tort. ...

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 applicant's 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. Amazon. ...

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).

International trade mark laws

It is important to note that although there are systems which facilitate the filing, registration or enforcement of trade mark rights in more than one jurisdiction on a regional or global basis (eg. the Madrid and CTM systems, see further below), it is currently not possible to file and obtain a single trade mark registration which will automatically apply around the world. Trade mark laws are territorial in nature and generally apply only in the applicable country or jurisdiction, a quality which is sometimes referred to as ‘territoriality’.

Agreement on Trade-Related Aspects of Intellectual Property Rights

The inherent limitations of the territorial application of trade mark laws have been mitigated by various intellectual property treaties. One such treaty is the WTO (formerly GATT) Agreement on Trade-Related Aspects of Intellectual Property Rights ('TRIPs'). Amongst other things, TRIPs generally requires that the trade mark laws of member jurisdictions are compatible with each other, a quality which is known as ‘harmonisation’. For example, Article 15(1) of TRIPs provides a definition for ‘sign’ which is used as or forms part of the definition of a 'trade mark' contained in the trade mark legislation of many jurisdictions around the world. In law, particularly in common law jurisdictions, intellectual property or IP refers to a legal entitlement which sometimes attaches to the expressed form of an idea, or to some other intangible subject matter. ... A treaty is a binding agreement under international law concluded by subjects of international law, namely states and international organizations. ... The World Trade Organization (WTO) is an international organization which oversees a large number of agreements defining the rules of trade between its member states (WTO, 2004a). ... General Agreement on Tariffs and Trade (usually abbreviated GATT) functions as the foundation of the WTO trading system, and remains in force, although the 1995 Agreement contains an updated version of it to replace the original 1947 one. ... The WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) is an international agreement on the subject of intellectual property. It covers copyright, patents, trademarks, trade secrets, industrial designs, geographical indicia and integrated circuit layouts. ...

The Madrid system for the international registration of marks

Main article: Madrid system The Madrid system for the international registration of marks, also conveniently known as the Madrid system or simply Madrid, is the primary international system for facilitating registration of trademarks in multiple jurisdictions around the world. ...

Foremost amongst the systems which facilitate registration of trade marks in multiple jurisdictions is the 'Madrid system', which provides a centrally administered system of obtaining a bundle of single jurisdiction trade mark registrations based on an ‘international registration’.

In basic terms, the primary advantage of the Madrid system is that it allows a trademark owner to obtain trademark protection in any or all member states by filing one application in one jurisdiction with one set of fees, and make any changes (eg. changes of name or address) and renew registration across all applicable jurisdictions through a single administrative process.

Community Trade Mark system

Main article: Community Trade Mark A Community Trade Mark, or CTM, refers to any trademark which is pending registration or has been registered in the European Union. ...

The Community Trade Mark system is the supranational trade mark system which applies in the European Union, whereby registration of a trade mark with the Office of Harmonisation in the Internal Market (Trade Marks and Designs) (i.e.. OHIM, the trade marks office of the European Union), leads to a registration which is effective throughout the EU as a whole. The CTM system is therefore said to be unitary in character, in that a CTM registration applies indivisibly across all European Union member states. However, the CTM system did not replace the national trade mark registration systems; the CTM system and the national systems continue to operate in parallel to each other. See also European Union trade mark law. Supranationalism is a method of decision-making in international organizations, where power is held by independent appointed officials or by representatives elected by the legislatures or people of the member states. ... Categories: Stub | European Union law | Intellectual property organizations ... EU member states and candidates Current members There are currently 25 member states in the European Union. ...

Other systems

Other supranational trade mark systems include the system in operation in Belgium, the Netherlands and Luxembourg, i.e.. Benelux. Benelux is the region of Europe comprising Belgium, the Netherlands, and Luxembourg. ...

Trade mark law in other countries

For the trade mark law which applies in a selection of other countries and jurisdictions, please refer to the following articles.

In Hong Kong, the 2000 Trade Marks Ordinance Cap. ... The system of trademark law of mainland China is administered by the Trade Mark Office (with an appeal function adminstered by the Trademark Review and Adjudication Board and the courts). ... The current UK Trade Mark legislation is the Trade Marks Act 1994, which implements the European Trade Marks Directive into national law. ... Trademarks were traditionally protected in the United States only under State common law, growing out of the tort of unfair competition. ...

Terminology and symbols

Establishing trademark rights — use and registration

Maintaining trademark rights — abandonment and genericide

Enforcing trademark rights

Wrongful or groundless threats of infringement

Other aspects

Consumer protection and confusion

Dilution

Transfer and licensing of trademarks (US law)

Comparison with patents, designs and copyright

Trademarks and Domain Names

International trade mark laws

Agreement on Trade-Related Aspects of Intellectual Property Rights

The Madrid system for the international registration of marks

Community Trade Mark system

Other systems

Trade mark law in other countries

See also

Non-standard trade marks

Non-conventional trademarks

Other

Related concepts

External links

Trade Mark Offices

Trade mark databases / searches

Trade mark organisations

Trade mark resources

Miscellaneous resources

Brand scorecards

Guidelines on the use of trademarks

Branding & Design

Corporate identity

Articles

Notes

Terminology and symbols GA_googleFillSlot("encyclopedia_square");

Establishing trademark rights — use and registration

Maintaining trademark rights — abandonment and genericide

Enforcing trademark rights

Wrongful or groundless threats of infringement

Other aspects

Consumer protection and confusion

Dilution

Transfer and licensing of trademarks (US law)

Comparison with patents, designs and copyright

Trademarks and Domain Names

International trade mark laws

Agreement on Trade-Related Aspects of Intellectual Property Rights

The Madrid system for the international registration of marks

Community Trade Mark system

Other systems

Trade mark law in other countries

See also

Non-standard trade marks

Non-conventional trademarks

Other

Related concepts

External links

Trade Mark Offices

Trade mark databases / searches

Trade mark organisations

Trade mark resources

Miscellaneous resources

Brand scorecards

Guidelines on the use of trademarks

Branding & Design

Corporate identity

Articles

Notes

Terminology and symbols