A trademark is any mark that distinguishes a company’s product or service from other companies. It takes years to build a company and also its reputation. When the company is in the market for certain years, the company builds a reputation. It develops goodwill among its customers. It develops a certain fanbase for its product. It is extremely important to protect this. Also, when the company acquires a considerable fanbase or customer base, other companies try to copy. They try it by:
Copying the name of the company;
Copying the logo of the company;
Copying the catchphrase of the company.
They do it to confuse the customer base into buying their products. If this is done all over the world, then the original company suffers a lot of damages. It loses plenty of customer base. To overcome this, the law of trademark has come into being.
Protecting the trademark is essential. It protects the revenue stream of the company. It protects its reputation. The customers lose interest in a company if they use some other company’s product and find it of poor quality. The law protects the intellectual property of the company. It affords certain protections to the trademark of that company. Following is how the law assists in the protection of a trademark:
Gives the right to Remedy: The company that gets its phrase, tagline, symbol, etc., registered as a trademark has certain remedies if another company breaches it.
The Lanham Act: The Lanham Act was passed in the year 1996. It is a federal law. Protection is provided to the trademark holders under the Lanham Act.
Common Law The person whose trademark has been infringed can also file a suit under the state common law. Filing a claim under the state common law does not preclude any other action.
The following essentials need to be fulfilled before a trademark obtains protection under the law.
Registration To claim statutory protection of the law, it is essential that the trademark is registered and is also renewed before it expires. Only a registered trademark gets protection under the law. The United States Patent and Trademark Office (USPTO) is the agency of the United States which deals with the grant of patents and registration of trademarks.
It must be Distinct: A trademark has to be distinct. It cannot be generic. For example, a person cannot trademark the word ‘computer.’ The word is too generic. For example, the word ‘Nike’ is trademarked. Its symbol, the ‘swoosh,’ is also trademarked. It is because the symbol is different and distinct. When deciding whether a word, symbol or trademark can be trademarked, the following checklist has to be checked:
Whether the mark is fanciful and arbitrary;
The word Microsoft is considered fanciful and arbitrary. It is distinct and does not have any connection with the business model of the company. These trademarks are the easiest to protect.
Suggestive and descriptive marks are the marks that suggest the nature, product, and services of the company. For example, Glance-A-Day for a company provides calendars. These trademarks are also easy to protect but difficult than fanciful and arbitrary trademarks.
Descriptive
Trademarks that describe the product or service. For example, ‘Television Marketing Agency’ for television marketing. Such trademarks are even difficult to obtain protection under the law.
Generic words do not get protection under the law.
Injunction: The injunction means an order from the court which orders the party against whom the order is passed to stop the given activity mentioned in the order. Such orders can be passed to stop the infringers from selling or manufacturing or using the registered trademark of certain other companies.
Account for profits: The infringing party is made to pay its profits by selling the infringed products or services.
Criminal proceedings: Criminal proceedings can be launched against the infringers.
Suit for damages: The infringers can be made to pay damages to the company which owns the trademark.
Destruction of the infringed goods
The goods may be ordered to be destroyed, which infringes the trademark.
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