A trade mark is a word, phrase, design or symbol, or combination of words of words, phrases, design or symbols used in the course of trade which identifies and distinguishes the source of the goods or service of one enterprise from those of others. A service mark is the same as a trade mark except that it identifies and distinguishes the source of a service rather than a product. Normally a trade mark appears on the product or on its packaging, while a service mark appears on in advertising for the service. It is different from a copyright, patent or geographical indication
A trade mark, therefore consists of the following:
a. Words e.g. coca cola.
b. Letters e.g. idea.
c. Numbers e.g. 501.
d. Symbols e.g. McDonald’s golden arches.
e. Signature e.g. Ford or Johnnie Walker.
f. Shape e.g. Motorola
A trademark can also consist in some circumstances a musical jingle or oral phrases and slogans, colours or combination of colours, and even smells. In fact just about anything can be trade mark as long as it performs the key role of distinguishing the products or services of one manufacturer from those of others.
TYPES OF TRADE MARKS:-
1. Product Trade-Mark
a. Example: Nike "swoosh”.
b. Make my trip and Tata
2. Service Trade-Mark
a. Example: CCD, Kaya skin clinic
3. Certification Mark
a. Example: ISI, Good house keeping seal of approval,
4. Collective Mark:
a. Example: CA, NAAC, NGO
5. Defensive Trade-Mark
a. Example: Mercedes
6. Jointly owned trademarks
TYPES OF NON-CONVENTIONAL TRADE MARKS
1) SOUND MARKS:
Uniquely identifies the commercial origin of products or services.
b. Yahoo- yodel
MGM and their lion's roar;
Intel and the three-second chord sequence used with the Pentium processor
2) SCENT MARK:-
A scent mark was first recognized in 1990 in the United States-plumeria scent which was applied to sewing thread and embroidery yarn was registered as a trademark.First Scent Mark in the European Union was - “the smell of fresh cut grass” for goods, namely tennis balls in 1999.Odour of beer for dart flights and the scent of roses for tyres -first olfactory marks to be registered in the U.K
The fragrance of 'Chanel No 5' for perfume failed
These have little legal importance but are useful as deterrents
1. Identify : to identify one seller’s goods from others.
2. Distinguish: to distinguish one merchants goods from another.
3. Source of origin: to indicate the source of origin of goods.
4. Quality : to indicate that all goods bearing the particular trade mark are of a particular quality desired by the customers.
5. Advertise : to advertise and promote in selling the goods
A trademark is unique because it performs two purposes. The first is similar to patents and copyrights. A trade mark is a means for a person or business to protect for example a logo from misuse by others. In truth, this is pretty much the underlying idea of most intellectual properties. The second purpose has its basis in something called public policy. This policy has to do with consumer confusion and the quality of products and services.
MARKS THAT CANNOT BE REGISTERED
a. Marks that describe value, quantity, quality, or intended purpose of the goods or services;
b. Marks that are deceptive;
c. Marks that are contrary to public order or morality;
d. Marks that consist of armorial bearings, flags and other emblems or official signs of States or international intergovernmental organizations;
e. Marks of such a nature as to infringe rights acquired by third parties in the country where protection is claimed (for example: marks that are identical or similar to earlier marks for identical or similar goods or services; or marks that are identical or similar to well-known marks).
DIFFERENCE BETWEEN TM, SM and ® SYMBOL
TM: The TM sign is used to signal an unregistered trademark, indicating a brand name for a product (classes 1 to 34). This sign can be designated by the owner indicating their belief of the trademark.
SM: The SM sign is identical to the TM sign except that it is used to designate a service mark (classes 35 to 45).
® : The ® symbol can only be used once a trademark or service mark have been registered by a country entity or organization. It indicates that the country authority has approved the registration.