Trademark serves the purpose of indicating that products and services offered by an individual or a business organization are unique and different from those offered by other entities. A trademark is often accompanied by symbols such as TM, SM and a circled R. While TM indicates that the trademark is an unregistered one used for promoting the goods, SM promotes services. Circled R indicates that the trademark is registered. Coming to the form of trademark, it can be anything such as a name, logo, design, symbol, image or any combination of these. Some other trademarks are different from these and are based on abstract qualities such as color, sound and smell.
Most of the countries require a formal registration for the usage of trademark and the owners of these registered trademarks can initiate the legal proceedings against the person who made unauthorized usage of it. However some countries like USA and Canada do provide protection to those trademarks that are widely in use but not registered. Though most of the times mark, logo and brand are used as synonyms to trademark, there are many other things that can be used as trademarks. For example, the shape of a good, or its package, sound, smell, color or anything that can distinguish a product or service from that of others can be used as trademark. The trademarks also have some specialized types such as certification marks, defensive trademarks and collective trademarks.
The origin of the trademark can be found in the Roman Empire where blacksmiths used trademarks to distinguish the swords made by them from others. Another important trademark that can be quoted here is Lowenbrau’s lion mark which is use since 1383. The above two are the examples for unregistered trademarks. The other type known as the registered trademarks are those registered with the government of a respective country. In UK, the first registered trademark was used by Bass Brewery. Their trademark included a red triangle with the words “Bass” written under it. This was the first registered trademark registered under Trade Mark Registration Act, 1875. In US, a rope making company by name Samson had the first trademark in 1884 which is in use by that company even today.
Trademark can be considered as a property as per the law and one can acquire proprietary rights to it either by using it in the market place or by registering it with the trademarks office. However, the trademarks in use are not protected under all jurisdictions and also the owners of them cannot make proceedings against those involved in trademark infringement. Often in these kinds of disputes, the verdict will be in the favor of those who filed the complaint first instead of those who started using it first. However in some countries like Germany, protection is available to the unregistered trademarks to certain extent only when the products and services are quite known in the market or occupies a significant market share of more than 40 percent.
Registering a required trademark involves various steps the first of which is applying for it. The application is then placed for scrutiny by the examination attorney only in the order in which the applications are received. The application is then checked for the fulfillment of requirements and also the required trademark is checked if it similar to the already existing trademarks in any manner. Then the application will be published welcoming any opposition from the third parties affected by it. The Trademark Trail and Appeal Board will decide if the case filed by the opposition is valid or not. In case no such opposition arises within the time period allowed for it, the applicant will get the required trademark registered.
Even before forwarding the application, the individual or the organization can search if the required trademark is already registered by anyone from the database of registered trademarks maintained by the concerned authority which is USPTO in case of the US. Often it is advised to go to take the assistance of licensed attorney while searching for the trademarks that are already registered. In many jurisdictions, the proprietary rights associated with the trademark expire if it is not used for a long period of five years.
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John Smith is a business writer and businessman who helps to set up businesses in Thailand, and an expert in Thailand trademark law.