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How to Register a Trademark?

What is Trademark?

Trademarks are basically signs and designs or even expressions which are used for identification of a particular product or service from a particular source. A trademark helps in differentiating the product or service from others of the same kind on the basis or origin and other qualities. The trademarks which are used for the identification of services are generally termed as service markers. The owner of a trademark can be an individual or a business organization. Legal entities have the right to own a trademark as well. The trademark is located according to the wish of the organization on a package or label and at times on the product. The trademarks are quite often displayed on the company building in order for the organization to maintain its corporate identity.

Usage

A trademark is registered by a brand in order for it to represent the brand owner of a specific product or service. It is possible for you to license your trademark to others as well. An example of such is Bullyland and the Lego Group. Both obtained license for the production of Smurf figures and permission to launch Lego Star wars respectively from Lucasfilm. If someone uses a certain trademark through production and trading of a counterfeit product or service without prior authorization from the owner then this act is termed as brand piracy.

In case of brand piracy; the owner who has the trademark registered has the option of pursuing some kind of legal action against the infringement of their trademark. Generally most countries have the requirement of a formal registration of the trademark as a pre-requisite of a successful pursuit of such an action. Countries that recognize otherwise include Canada and the Unites States. These countries tend to recognize the rights of common law trademark which basically means that an action can be taken to protect an unregistered trademark in case of usage. However the case is not that strong and generally less legal protection is offered to the common law trademarks compared to the ones which are registered.

How to design a trademark?

Trademark essentially uses symbols for separate identification and individualism. Following are some of the symbols designated for trademarks:

This is the trademark symbol and it comprises of the letters “TM”. It is used for the trademarks which are unregistered. This mark is basically used for promotion of a brand or goods in general.

These are the letters “SM” being used in superscript form. These are used for the service marks which are unregistered. This mark is used for brand services and promotional activities.

  • ®

The symbol consists of the letter R which is surrounded by a circle. It used to represent a registered trademark.

A trademark can generally be understood as one of or a combination of the following elements:

  1. Word
  2. Name
  3. Phrase
  4. Logo
  5. Symbol
  6. Design
  7. Image

However there is an array of different kinds of non-conventional trademarks which comprise of the marks that don’t fall under the generally standardized categories. These unconventional kinds are based on following kinds of elements:

  • Color
  • Smell
  • Sound

An example of such a trademark can be taken from jingles. You have to make sure that the trademark is not offensive as that is against the law. The term trademark is used for other purposes as well. For instance trademark is utilized for an informal reference to any differentiating attribute. This attribute has to be the key factor for speedy identification of an individual. An example of such is the unique characteristics of celebrities due to which they are famous. When trademarks are used primarily for the representation of a service rather than a product then they are termed as service marks. This practice is particularly common in the United States.

Fundamental concepts

In order for you to start using trademarks for your business you must unravel the basic concepts and usage of trademarks. You should understand the essential purpose of trademark. The primary function of a trademark is to ensure exclusive identification of a commercial source or the origin of a certain product or service. So at the end of the day a trademark will be a certain something that offers indication of the source or origin of the product or service. In other words you can trademarks as elements that are used by the businesses for the identification of their goods or services in general. There’s a separate term for this kind of usage of a trademark; Astrademark use. There are certain exclusive rights offered to those with a registered mark.

You should keep in mind that the rights offered to the trademark are associated with its usage. The secondary purpose of the rights is to offer exclusivity pertaining to the product or service provided that there are absolutely no objections to the trademark. Today’s world has classified an array of different goods and services. This process of classification has been carried out by the International Classification of Goods and Services. The classification has been done of a total of forty five trademark classes. About thirty four of these cover goods while the rest are reserved primarily for services.

The idea on which this system is based is the specification and limitation of the extension of rights of intellectual property. This is assured by determination of the type of goods and services covered by the mark and for the unification of classification systems across the globe.

History

The first ever trademark was the logo of Bass Brewery and it was the very first image that was officially registered as a trademark with the United Kingdom in the year 1876. If you take the basic history of trademark in to consideration then the blacksmiths responsible for creation of swords at the times of Roman Empire are said to be the very first users of this unique concept. Amongst other worth noticing trademarks that have been used for quite some include Lowenbrau which has been using the mark of a lion since as late as 1383.

The very first legislation for the trademark was passed in the year 1266 at the time of King Henry the third. The Parliament of England was responsible for passing this legislation which posed a requirement on all the bakers to make use of distinctive mark for the bread that they sold. The United Kingdom passed the trademarks act in the year 1938 which allowed setting up of the very first registration system. This system was based on the principle of “intent-to-use”. This act was also responsible for the establishment of a procedure for application publication along with the expansion of the rights provided to the trademark holder. The barring trademark use at the time of confusion was to remain unlikely. This act was treated as a model for legislation of similar nature everywhere else.

Oldest registered trademarks

When it comes to the verification of the oldest trademarks which were registered there is a lot of ambiguity. One reason for the confusion is that the concept is quite old and the second being a variety of claimants for this particular thing. Here are the top claimants for the oldest registered trademarks:

  • United Kingdom- in this particular region Bass Brewery is said to have used its triangle logo for the very first time after registration under the Trade Mark Registration Act of 1875.
  • United States- there are quite a few claimants in this particular region. However the very first registered trademark is of the Averill Chemical Paint Company. The trademark consisted of an eagle and a ribbon with the words of “Economical Brilliant”. The company filed for this trademark on 30th August under the Trademark Act of 1870. The confusion is created as the US Supreme Court declared this act of 1870 as unconstitutional.

Symbols

There are two symbols associated with the trademarks used in the United States. ™ is a symbol used for the representation of a trademark whereas ® is used as a representation registration of that particular trademark symbol. This offers a mark of protection for that particular brand. The first symbol is allowed to be used with common law usage of a mark but the second one is not allowed to be used by anyone but the owner of that mark and that too after the proper procedure of registration has taken place relevant to the national authority like PTO.

Terminology

There are several terms which are quite commonly used instead of trademark. For instance the terms “mark”, “logo” and “brand” are used interchangeably with the official term of trademark. These terms are limited whereas Trademark can refer to any:

  • Brand
  • Device
  • Label
  • Name
  • Signature
  • Word
  • Numerical
  • Letter
  • Packaging
  • Color
  • Combination of colors
  • Smell
  • Movement
  • Sound

This is why trademark is effective in terms of distinguishing the services and goods of a particular business from the rest.