Trademark

A trademark (Commonwealth English: trade mark){{an|styling}} is a distinctive sign of some kind which is used by a business to identify itself and its products and services to consumers, and to set the business and its products or services apart from those of other businesses. A trademark is a type of intellectual property, and in particular, a type of industrial property.

Enforcing trademark rights

The extent to which a trademark owner may prevent unauthorized use of trademarks which are the same as or similar to its trademark depends on various factors such as whether its trademark is registered, the similarity of the trademarks involved, the similarity of the products and/or services involved, and whether the owner?s trademark is well known.

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If a trademark has not been registered, some jurisdictions (especially Common Law countries) offer protection for the business reputation or goodwill which attaches to unregistered trade marks through the tort of passing off. Passing off may provide a remedy in a scenario where a business has been trading under an unregistered trade mark for many years, and a rival business starts using the same or a similar mark.

Related Topics:
Common Law - Business - Reputation - Goodwill - Tort - Passing off

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If a trademark has been registered, then it is much easier for the trademark owner to demonstrate its trademark rights and to enforce these rights through an infringement action. Unauthorised use of a registered trade mark need not be intentional in order for infringement to occur, although damages in an infringement lawsuit will generally be greater if there was an intention to deceive.

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For trademarks which are considered to be well known, infringing use may occur where the use occurs in relation to products or services which are not the same as or similar to the products or services in relation to which the owner's mark is registered.

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Wrongful or groundless threats of infringement

Various jurisdictions have laws which are designed to prevent trademarks' owners from making wrongful threats of trademark infringement action against other parties. These laws are intended to prevent large or powerful companies from intimidating or harassing smaller companies.

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Where one party makes a threat to sue another for trademark infringement, but does not have a genuine basis or intention to carry out that threat, or does not carry out the threat at all within a certain period, the threat may itself become a basis for legal action.

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