CHOOSING THE RIGHT TRADEMARK ? A LEGAL ASPECT

The selection between investing time and investigation in carefully selecting just the right brand name or trademark to perfectly represent one’s organization or the less difficult option to rush to the marketplace without having adequate time and research virtually constantly divides the feeble luke warm businesses that will by no means amount to anything from the enterprising, flourishing ones.  The idea of branding although widely proclaimed from a creative aspect totally collapses if it fails to pass the fundamental legal test, a test that every single single business owner will face at some point in the lifespan of his enterprise.  It is vital that you know that your brand will definitely and absolutely be scanned at the legal barrier, be it at the time of a trademark registration or at a competitor’s fancy. The far more profitable you are, the sooner you will be on the legal radar and the longer it takes, the a lot more perilous for you. The enterprise that you had been so eager to take to the marketplace will be valued at zero if the brand name advertised, marketed and sold to public for all those years is regarded as legally worthless and you are ordered to stop all sales, advertising marketing and advertising of your product utilizing that name. You will have no alternative but to start from the beginning or far more realistically, being so late in the day, shut down and claim bankruptcy.

Most brand consultants are conscious of the selling capabilities, the advertising tactics, the marketing technique etc. to make sure the public is made aware of you, your brand and your product. Not numerous inform you that all of the above will be insignificant if your brand name or trademark does not adhere to the international rules of trademark law and numerous consultants are not even aware of these laws. Every country has a trademark office and an enactment on trademark law. If you are beginning your own enterprise, your legacy, it is advisable that you obtain a copy of the laws in your country and read it. You could usually retain the services of trademark attorney or contact the trademark office directly if you require far more details. Below is a fast study of what not to do when selecting the most crucial personality defining your business – your brand name.

DESCRIPTIVE OR GENERIC TRADEMARKS: By no means select a name or trademark that describes your item or service. For example, if you are in the mobile phone industry, your trademark completely ought to not have the words or a descriptive logo of a mobile phone. The name Mobile Phone Manufactures, Mobile Technologies, Phone Call Service Provider etc. is a huge NO. Geographically descriptive names also fall under this category. For example, ‘India’s Best Rice Provider’ or ‘Florida Wine County’ are geographically descriptive names. Descriptive or generic names are WEAK. They will be rejected by the trademark registry in any country. They will not hold value in any court of law and you will have only limited protection, if any, for such trademarks.

CONFUSINGLY Similar: Your trademark, logo and brand name should not be confusingly similar in the eyes of an ordinary consumer to another’s trademark. The key word is ‘similar’ not ‘same’. If a consumer is likely to assume that your trademark and the other trademark are from a common source, your trademark, the later trademark, will be WEAK and will be cancelled in favor of the other prior trademark. You will need to guarantee that a trademark search is conducted for all your potential brand names. You can do it your self at the trademark office internet site or send a request to the Trademark Registry for a search report. All registered trademarks are in the Trademark Register. Any Trademark attorney will be able to conduct a trademark search as properly. The critical criterion to watch out for is that the marks should not be similar in appearance, in sound and in meaning. The goods and services of the products or services need to also not be comparable or travel in the very same channels of trade and advertising.

SURNAMES: Try and stay away from making use of surnames as your brand or trademark. Surnames are WEAK trademarks unless proven distinctive. Distinctive trademarks are proven by showing commercial usage of the name for five (five) years or a lot more and proof that the general public associates your name with your product/service.

INTERNATIONAL &amp NATIONAL EMBLEMS, SYMBOLS, NAMES:  Such names cannot be employed per se, regardless if it is utilized on a diverse item or service. This consists of any seals, insignia, badges, decorations, medals and characters of any government or international organization

ORNAMENTAL OR DECORATIVE TRADEMARKS: Such marks are not regarded as trademarks as they are merely decorative or ornamental and not capable of distinguishing ones’ item from another. An ornamental pattern on the picture of jeans was not considered as a trademark.  It was only regarded as decorative.

SCANDALOUS OR OBSCENE MATTER: Any trademark or name that is regarded as immoral, indecent or disrespectful in accordance with society and moral norms will not be a considered as a trademark.

CHEMICAL ELEMENT OR ANY SINGLE CHEMICAL COMPOUND (AS DISTINGUISHED FROM A MIXTURE) IN RESPECT OF A CHEMICAL SUBSTANCE OR PREPARATION: In India, a name of any such chemical can not be utilized as a trademark to distinguish a business even if it is for unrelated goods and services.

USE OF NAMES AND REPRESENTATIONS OF LIVING PERSONS OR PERSONS Recently DEAD: It is advisable not to use the names of any living persons as a trademark as the trademark registry would need written consent from such person prior to registering such mark. Also names of persons lately dead really should not be used as trademarks.

Famous TRADEMARKS: Famous marks are distinctive and hence can’t be utilised even for unrelated products. The finest example is the case of Apple Inc. v. The Victorian School of Enterprise in Canada.  Apple Inc. sued the school for making use of a similar logo. Apple Inc. argued that it has acquired distinctiveness and usage if the Apple trademark or similar trademark dilutes Apple’s brand value regardless if it was utilised for unrelated activities.

The lesson to be learnt is do not attempt and copy any famous mark or logo for according to the laws of trademark dilution, a well-known mark is distinctive and hence the owner has the right to prevent other people from employing that mark in a way that would lessen its uniqueness.