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Trademark is a major platform or format by which product owner’s project into streams of commerce goods and services. It serves important functions of origin, differentiation, guarantee of quality and advertising for the particular products. This in turn creates distinctiveness of and goodwill for their products and services through personal names, designs letters, numerals, logos, brands, marks or shape of goods or their packaging which the mark is affixed to Trademarks are protected by law in order to serve the purpose of recognition and prevent the public from being confused about the source of the goods and services and also help assure that the trademark owner, and not an imitative competitor, will reap the rewards associated with a desirable product.
A trademark is any word, name, symbol or device (or any combination thereof) that identifies and distinguishes the source of the goods of one party from those of others. Trademark also means a mark used or proposed to be used in relation to goods for the purpose of indicting, or so as to indicate a connection in the course of trade between the goods, and some person having the right either as a proprietor or as registered user to use the mark whether with or without any indication of the identity of that person.
IMPORTANCE OF A TRADEMARK
A Trademark is important both to the proprietor and the public in the following ways
- A trademark is used to identify a product
- A trademark helps to identify the origin and ownership of the good on which it is used.
- It helps to prevent the grievous deceit of the people by the sale of defective goods.
- Trademarks help to safeguard the collective goodwill and monopoly of the guild.
- It helps to prevent confusion about a particular product.
SELECTING A TRADEMARK
Trademarks must be distinctive. The more distinctive a mark is, the more well known the mark becomes and the wider the mark’s scope of production will be.
Trademarks can be categorized as having the following level of distinctiveness or strength.
- FANCIFUL OR COINMARK
These marks are words that are made up and have no meaning other than as a brand name e.g EXXON for petroleum.
- ARBITRARY MARKS
These marks include words that have a common meaning but not in relation to the goods for which they are used as brand names e.g APPLE for computers and SAMSUNG for televisions.
- SUGGESTIVE MARKS
These marks suggest some attribute or benefit of the goods or services but do not describe the goods themselves e.g MICROSOFT for software for microcomputers
Before adopting a new mark, it is advisable to have a search conducted and evaluated by a qualified attorney or service provider.
REGISTRATION OF A TRADEMARK
A registered trademark has the symbol ® or Reg. The trademark act provides that a record to be called the register of trademarks shall be kept by the Registrar of Trademarks. By virtue of sections 2(1), the register shall contain
- An entry of all registered trademarks with the names and addresses of their proprietors.
- The date on which applications were made
- The names and addresses of all registered users and such matters relating to registered trademarks.
The Trademarks Register is divided into two parts namely: Part A and Part B and is open to the inspection of the public subject to such rules as may be prescribed.
Registration of a trademark under any of the parts shall if valid, give or be deemed to have given the proprietor the exclusive right to the use of that trademark in relation to the marked goods. Section 6(1) gives the proprietor of a trademark in Part B right in relation to those goods as if the registration had been in Part A of the register except in an action of infringement. Part A and Part B registrations have similar characteristics. Part A is concerned with the prerequisite of distinctiveness for registration while Part B registration is concerned with the requirement of capability of distinctiveness. Both parts require marks to have an inherent capacity to be distinctive or distinguishable for registrations and both parts also require use in the course of trade as a relevant factor in determining whether the trademark is capable of distinguishing.
ESTABLISHMENT OF THE RIGHT TO A TRADEMARK
To establish a right in a trademark, the trademark must be registered by filing an application which consists of:
- Name of applicant
- Address of applicant
- A representation of a mark
- A listing of the goods desired to be covered by the registration
- Official filing fee.
After a trademark application is filed, an examiner in the trademark office examines the application and may raise questions about it such as whether the mark is registrable, and whether the formal requirement of the application process have been met. Once the trademark examiner is satisfied that the trademark application meets the appropriate requirements for registration, the trademark application is typically published by the trademark office. A limited period is set for opposition. If no opposition is filed, the registration is issued.
NON REGISTRABLE TRADEMARK
- DESCRIPTIVE MARKS
These are terms that describe goods or other characteristics and which cannot be protected as a mark unless the public has come to recognize them as marks. E.g the surname FORD for automobiles.
- DECEPTIVE MARKS
These falsely imply an association with a place and can never be registered as a trademark e.g Made in Paris for perfume manufactured in the United States. They falsely indicate a connection.
- IDENTICAL MARKS
These are marks that have been granted registration. They are identical or similar to a registered trademark.
LOSING THE RIGHT TO A TRADEMARK
- The most common way to lose rights in a mark is to stop using it with no intention to use it again (abandonment).
- Licensing the mark to others without controlling the nature and quality of the goods the licensee offers under the mark (naked licensing)
- Missing the mark or by failing to police the mark’s misuse by others.
INFRINGEMENT OF A TRADEMARK
Infringement is the use of a mark so similar to another’s mark for the same or related goods by which confusion, mistake or deception is likely to occur. Infringement is not allowed because trademarks have to be special and different from all others in existence. They are supposed to identify and not confuse. If infringement occurs, they are reported to the authorities. The court may issue injunction, compensate the owner for damage, take away the infringers profits, and the goods of the infringer may be confiscated or seized or recalled from the market and destroyed. The infringer may also be fined.
Adewopo, O. (1997). The Nigerian Trademark Regime and challenges of Economic Development.
Cornish, E. R. (1999). Intellectual property. Patents, copyright, Trademark and Allied Rights Fourth Edition. Sweet and Maxwell, London. P. 59.
David, K. (1997). Law of Trademark and Trade Intellectual Property Law. Cavendish Publishing Limited, London. P. 512.
Paul, M. (1996). Intellectual Property Law. Sweet and Maxwell, London pp. 159-160.