Trademarks - What are they?
Trademarks (TMs) protect words, names, symbols, sounds, or colours that are capable of distinguishing goods and services of one source from those manufactured or sold by others. In short, it is an indication of origin of the goods or services. Trademarks, unlike patents, can be renewed forever as long as they are being used in commerce. TMs are issued by national trademark offices (e.g., the US Patent & Trademark Office) although regional initiatives for the protection of TMs, for example, the EU Community Trade Mark, exist to provide a wider coverage of protection for all members of the European Union.
Under the Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks (Madrid Protocol), a trademark owner may seek registration in any of the countries that have joined the Madrid Protocol by filing a single application, called an “international application.” The International Bureau of the World Intellectual Property Organisation, in Geneva, Switzerland administers the international registration system.
Almost every word, letter, numeral or symbol is capable of being a TM. Even music or vocal sounds and smell could be subjected to TM protection today. The only exceptions seem to be signs that are; non-distinctive or descriptive in nature, contrary to public policy or morality, likely to cause the public to be deceived as to its quality, and registrations that are made in bad faith.
The choice of a TM is important and can be a highly valuable property of a seller or manufacturer as it is the symbol of the company’s goodwill. It can be sold or assigned when a company and its assets are sold. It can also be licensed to others to use as long as the owner exercises control over the quality of goods or services supplied by the licensee. For instance, most fast-food outlets, such as McDonald’s, Kentucky Fried Chicken, or other franchised businesses are licensed to use the TM of the parent company or franchiser.
Although descriptive signs are generally not eligible for registration because every maker of that product is free to use its name (for e.g. Sony is a well-known TM for televisions, radios, and audio equipment, but no one can have TM rights to the word television or radio for those products), an owner of TM must be vigilant in ensuring that his TM remains distinctive over time. On several occasions, words intended by manufacturers to be used as TMs for new products were instead used by customers to name the products; such words then lost their legal status as TMs. Examples include aspirin, cellophane, and escalator.
