Trademark

http://www.trademarkscanada.ca/index.html?gclid=CP-ko7LZ35kCFSbxDAodm0yeVA

http://www.web.net/~misha/trademark.html

http://cyber.law.harvard.edu/metaschool/fisher/domain/tm.htm

http://laws.justice.gc.ca/en/T-13/index.html

http://www.bizfilings.com/products/articles/what_is_trademark.asp

http://www.wipo.int/trademarks/en/trademarks.html

http://www.registeringatrademark.com/what-is-a-trademark.shtml

http://74.125.95.132/search?q=cache:m_GZbTU4r4AJ:www.uakron.edu/dotAsset/125221.doc+what+is+trademark&cd=21&hl=en&ct=clnk&gl=ca

http://www.piperpat.com/IPInformation/Introduction/WhatisaTrademark/tabid/90/Default.aspx

http://www.bitlaw.com/trademark/infringe.html http://news.cnet.com/2100-1030_3-5564118.html http://www.ameinfo.com/25260.html http://cyber.law.harvard.edu/property00/domain/CaseLinks.html __**TRADEMARKS**__ For an individual, company or business owner’s product to be distinguished from another, it has to have its own specific symbol, name or drawing. This specific symbol, name or drawing is what is known as trademarks. Trademarks are usually used to differentiate products and services. For a trademark to be distinguishable, it has to be easily remembered, and enable the customers’ think of the quality and durability of the product. Products with easily be identified trademarks arouses the interests of investors in the product. Trademark is one of the three types of intellectual property. An example of a trademark is ‘Coca-Cola’. Once ‘Coca-Cola’ is mention, the imagery of the red and white canned or bottled drink automatically comes to mind. It is easily differentiated from the blue and white bottled or canned drink of Pepsi. Trademark is abbreviated with the sign ™, or the sign ®. Trademarks began right from the ancient times when craftsmen made drawings on their work. A polish salt mine named Wieliczka is the oldest trademark, which dates back to the 11th century. The first trademark law was passed by the US congress in the 17th century. As time passed, trademarks became a legal entity providing registration and protection for business owners. The specific symbol, name or drawing used to differentiate a service by a company, individual, or business owner, is called a service mark. A service mark is similar to a trademark only that it deals with services provided. It is abbreviated with a symbol SM. The same laws which apply to trademarks also apply to service marks. The sole purpose of a trademark is to give protection to the owner of a particular product. This protection legally prevents individuals or companies from falsely representing a trademark for personal economic gains. There are time restrictions to trademarks. However they can be continually renewed for a fee upon expiry. After registering the trademarks, owners have to renew the ownership of their trademarks, after five- six years for the first time, then every ten years thereafter. The right to use a trademark can be transferred through licensing agreements that requires the licensee to pay money in form of royalties to the licensor. In Canada, once a trademark is registered, the individual or company has the right to use the symbol within Canada. Registering a trademark, helps prevent/minimize the infringement of a trademark by unauthorized fellows. In the case of any legal dispute the trademark owner is favored and infringement is often required to compensate for the illegal act. Trademarks however can not prevent other companies or individuals from selling the same product under a different name. Trademarks do not only cover names, images or symbols, but also covers particular phrases and color of the packages. Trademarks also help the popularity and the earnings of the product, by serving as a source of advertisement to people around the globe. Trademarks enable people show their own work and invention, preventing other individuals from trying to steal it. Another importance of a trademark is that, if the company that owns that trademark, runs well, the name or symbol alone that represents that trademark can be worth a huge amount of money. An example of this is the Rocawear brand which was formerly owned by Shawn Carter. Shawn Carter sold the brand which is the name and logo to Iconix brand group for 204 million dollars. The registration of a trademark must be done at a trademark agency. The trademark agency in Canada is called the Canadian Intellectual Property Office, while United States Patent and Trademark Office (USPTO) is the trademark agency for the United States. The exact image, including the color and any other drawing must be included in the application. Also the name and full description of the goods or services that will use the trademark must be provided. The drawing or image must follow certain criteria’s, provided by the Trademark Agency. Firstly, the mark or symbol must be unique and must be able to describe the product in which it is used for. It must also be able to show the origin of the product. The sign or symbol must not contain any sort of immorality, and must not be used to deceive the customers. Rights to a trademark cannot only be gotten from registering the symbol, but also being the pioneer user of the mark in commerce or marketplace. The right given to a registered trademark can also be taken away. If the individual decides to stop the production of the good in which the trademark is registered in without the plan of continuing, then, the rights to the trademark will be taken away. The trademark agency also has the ability to take the trademark rights away, when trademarked product is not in good management, or when the product is not the same as what it was trademarked for. Trademark rights can be lost if, a trademarked word or symbol, is seen by the population as a general word, and not a word that is peculiar to a particular product. Like any other law that can be broken, trademark laws can also be broken. This are referred to as trademark infringement. Trademark infringement occurs when the rights given in ownership of a trademark are being violated without the consent of the authorized owner. The violation of these rights includes the copying or making similar images of a trademarked image and using it for another product with the intention of deceiving the public to believe that the product is similar to another trademarked product. In other to resolve trademark infringements, a claim must be made to the court. In the United States, the plaintiff must sue the defendant under Section 43(a) of the Lanham Act. The Lanham’s Act was formed in 1946, and was the act that created the trademark law followed in the states today. In claiming trademark infringement, the plaintiff has to prove to the judge that the defendant has copied their trademarked symbol in any form, causing confusion in the two products among the consumers. The confusion may be as a result of the defendant producing the same product as the plaintiff, and using the same or similar trademarked logo as the plaintiff. Apart from trademark infringement, there is also trademark dilution. This is a trademark law, which allows the owner of a trademarked product to prevent anyone from using any symbol or mark similar to its trademarked symbol, for the purpose of preserving its distinctiveness. For trademark dilution to be claimed, the product has to be very popular. In order to claim dilution, certain qualities must have been seen. First of all, the product must be very popular. Popular products include Coca-cola and Microsoft. Also the net worth of the company is another factor that is considered. If a trademark infringement was found against the defendant, they will be charged a specific fee, and the lawyer’s fee for the plaintiff would be taken care of. Also, the profit of the defendant can be collected by the court and given to the plaintiff. The defendant may also be asked to pay for the damages caused to the plaintiff. The defendant can prove that he or she is not infringing the trademark if it can be proved that the label or symbol is not causing any sort of confusion among the consumers of both products. Also the defendant can claim that they did not go against trademark infringement of dilution, if the product logo or label is not in anyway similar to the trademarked product. For one to really know the true nature of trademark infringement and dilution, it is recommended that one should study real trademark infringement cases. This will reveal how trademark laws have been applied in the past. First of all, the application of the trademark law can be seen in the case of Google versus Louis Vuitton Malletier, in a court in france. Google is the world’s largest internet search engine, while Louis Vuitton Malletier, is a fashion designer company. Google created an application called Adwords. Adwords is way to advertise with Google, which displays related results, when a search Is made on Google. Louis Vuitton sued Google in 2004, and the Paris District court, found Google guilty for the sale of search-related advertisement of their Brand. This lead to a confusion among the trademarked Louis Vuitton brand and other products, due to the deceiving advertisement. Google was charged a fee of $257,430. At almost the same time, Google was sued by Le Meridien Hotels and Resorts, in europe. The court also found Google guilt for selling related advertisement of their brand. Google lost this cases, because the court claimed that when a search of Le Meridien Hotels and Resorts, is made, results of other hotels come up, causing trademark infringement. This cases shows the proper application of trademark law, which states that, any mark, or logo, that is similar to a trademarked logo and causes confusion and deceit among the consumers, is infringing on ones trademark. Another case, is the case of Red Bull company, versus makers of an energy drink called Bullfighter. Red Bull is a famous trademarked product in the United Arab Emirates. Therefore, Red bull has all the rights of a Trademarked product. Red Bull claimed that the manufacture of the Bullfighter energy drink, are deceiving the consumers, into believing that the product is similar to Red Bull or is being produced by Red Bull because of the similarities to Red Bull’s trademarked logo, name, and also the similar shape of can of the product. The judge found the manufacturer of the Bullfighter energy guilty of trademark dilution because, they tried to use the fame of Red bull’s energy drink to make profit from their product, by producing it in similar fashion. The Manufacturer was charged a fee of AED 15000. This case shows another successful application of the trademark law, which says that, one can not copy any trademarked logo, shape or even color, in attempt to deceive the public into believing that the two products are similar in nature and quality. The cases of Sporty’s Farm L.L.C vs. Sportsman’s Market Inc 2000 U.S. App. LEXIS 1246 (2d Cir. 2/2/2000) helps show the application of the trademark law. Sportsman market Inc is a mail order catalogie company used to sell items to pilots and pilot related items. Sportsman first used their logo “sporty” in the 1960’s and registered their trademark in 1985. Sportsman Market inc has so many services relating to this “sporty” logo. Omega is another mail catalogue company that sells sceintific instruments. They later started selling pilot and pilot related items. Omega Inc created a website called Sportys.com that sell this pilot items. Later Omega created a company called Sporty’s Farm sold its rights in 1996 to Sporty’s Farm, sellers of Christmas tress, who started advertising their Christmas tree products on the site. Sportsman then discovered that the sportys.com has been created by Omega inc, preventing them from using the website as their trademarked site. The case was decided in February 2 2000, and Omega Inc was found guilty of trademark infringement and dilution due to the fact that, omega created the website name Sportys.com for the purpose of selling these pilot related items and sold it to Sportys Farm Inc, to prevent Sportsman Inc from claiming the Trademark name and using the website name as theirs. The case of Shades’s landing vs. Williams 1999 U.S. Dist. LEXIS 19782 (D. Mn. 12/22/99) shows a successful application of trademark law, which proves the importance on registration of trademarks. Shades’s landing is a real estate agency. They give their real estate services through their website called [|Home.market.com]. They also have a registered radio program, called ‘home-market’. The home-market trademark had been registered since the year 1996. in 1998 Mr. William created a website that provide services for real estate agents. He named his site “home-market.net”. Shades;s landing sued Mr. Williams for trademark infringement and in December 22 1999 judge John Tunheim of a United States District court found William guilty of trademark infringement due to the that that his website name was the identical to that of Shades’s landing and also the fact that William’s website was a competition to that of Shades’s landing and cause a sort of confusion to customers