A trademark,is a recognizable sign, design, or expression which identifies products or services of a particular source from those of others, although trademarks used to identify services are usually called service marks.
The first modern trade mark laws emerged in the late 19th century. In France the first comprehensive trademark system in the world was passed into law in 1857.
A trade mark identifies the brand owner of a particular product or service. Trademarks can be used by others under licensing agreements.
The owner of a trade mark may pursue legal action against trademark infringement. Most countries require formal registration of a trademark as a precondition for pursuing this type of action.
The United States, Canada and other countries also recognize common law trade mark rights, which means action can be taken to protect an unregistered trademark if it is in use. Still, common law trademarks offer the holder, in general, less legal protection than registered Trademarks.
A trade mark is typically a name, word, phrase, logo, symbol, design, image, or a combination of these elements.
When a Trade mark is used in relation to services rather than products, it may sometimes be called a service mark.
The essential function of a trade mark is to exclusively identify the commercial source or origin of products or services. The two symbols associated with trademarks, ™.
In the United States the USPTO maintains a database of registered trade marks. The database is open to the public.
A licensed attorney may be required to interpret the search results. As trade marks are governed by federal law, state law, and common law, a thorough search as to the availability of a mark is very important.
In the United States obtaining a trademark search and relying upon the results of an opinion issued by an attorney may insulate a trademark user from being required to pay treble damages and attorney’s fees in a trademark infringement case as it demonstrates that the trademark user performed due diligence and was using the mark in good faith.
Trademarks rights must be maintained through actual lawful use of the trade mark. These rights will cease if a mark is not actively used for a period of time, normally 5 years in most jurisdictions.
In the case of a trade mark registration, failure to actively use the mark in the lawful course of trade, or to enforce the registration in the event of infringement, may also expose the registration itself to become liable for an application for the removal from the register after a certain period of time on the grounds of non-use.
Trade mark law is designed to fulfill the public policy objective of consumer protection, by preventing the public from being misled as to the origin or quality of a product or service.
By identifying the commercial source of products and services, trade marks facilitate identification of products and services which meet the expectations of consumers as to quality and other characteristics.