A trademark (Commonwealth English: trade mark)[1] is a distinctive
sign of some kind which is used by a business to identify itself and
its products and 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.
Conventionally, a trademark
comprises 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.
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 symbolsThe Bass Red Triangle, was the first trademark registered in Britain in 1876.
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.
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.
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. Although the extent to which
non-conventional trademarks can be protected or even recognised varies
considerably from jurisdiction to jurisdiction [2], shape marks and
sound marks are examples of non-conventional marks which are in the
process of migrating out of this category.
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.