Trademark Laws are set out in the Trademark Act of1993, which describes a trademark as a mark used or proposed to be used by a person in relation to goods or services for the purpose of distinguishing the goods or services in relation to which the mark is used or proposed to be used from the same kind of goods or services connected in the course of trade with any other person.
Trademark Laws cover all aspects of trademarks, for example, what marks are not acceptable and what marks are, how to register and so on.
The Trademark Laws consider a trademark to be a form of property. Proprietary rights in relation to a trademark may be established through actual use in the marketplace, or through registration of the mark with CIPRO (the Companies and Intellectual Property Registration Office) In many jurisdictions, trademark laws state that trademark rights can be established through either or both means.
Certain jurisdictions generally do not recognise trademarks rights arising through use (e.g. China). If trademark owners do not hold registrations for their marks in such jurisdictions, the extent to which they will be able to enforce their rights through trademark infringement proceedings will therefore be limited.
A registered trademark confers a bundle of exclusive rights upon the registered owner, including the right to exclusive use of the mark in relation to the products or services for which it is registered.
The laws in most jurisdictions also allow for the owner of a registered trademark to prevent unauthorised use of the mark in relation to products or services which are similar to the "registered" products or services, and in certain cases, prevent use in relation to entirely different products or services.
Trademark laws are designed to fulfill the public policy objective of consumer protection, by preventing the public from being misled as to the origin or quality of a product or service. By identifying the commercial source of products and services, trademark laws assist in the classification of products and services, which meet the expectations of consumers as to their quality and other characteristics.
Trademarks may also serve as an incentive for manufacturers, providers or suppliers to always provide quality products or services in order to maintain their business reputation. Furthermore, if a trademark owner does not maintain quality control and adequate supervision in relation to the manufacture and provision of his products or services supplied by a licensee, such “naked licensing” will eventually adversely impact on the owner’s rights in the trademark.
In many jurisdictions a trademark may be sold with or without the underlying goodwill, which subsists in the business associated with the mark. However, this is not the case in the United States, where the courts have held that this would "be a fraud upon the public".
In the United States, therefore, Trademark Laws state that trademark registration can therefore only be sold and assigned if accompanied by the sale of an underlying asset.
If you have any queries regarding trademark laws you should contact an Intellectual Property Attorney.
|
