Copyright © Philip M. Parker, INSEAD. Terms of Use.
Definition: Trademark |
TrademarkNoun1. A distinctive characteristic or attribute. 2. A formally registered symbol identifying the manufacturer or distributor of a product. Source: WordNet 1.7.1 Copyright © 2001 by Princeton University. All rights reserved. |
Date "trademark" was first used in popular English literature: sometime before 1906. (references) |
| Domain | Definition |
Food & Agriculture | A device(as a word)pointing distinctly to the origin or ownership of merchandise to which it is applied and legally reserved to the exclusive use of the owner as maker or seller ; a special mark placed on a particular brand of article or commodity to distinguish it from similar goods sold by other producers ; name or mark used in commerce to indicate the origin of a wine or the vendor. Source: European Union. (references) |
Law | Sign or symbol used to distinguish the products or services of an enterprise, and which may be filed or registered by a competent authority for the purpose of protection. Source: European Union. (references) |
Source: compiled by the editor from various references; see credits. | |
(From Wikipedia, the free Encyclopedia)
See also Brand
A trademark (or, as referred to in Commonwealth countries, a "trade mark") is a distinctive name, phrase, symbol, design, picture, or style used by a business to identify itself to consumers.
If the business identified is a service rather than a product, the mark is sometimes called a service mark. In text and advertising one often sees the symbol ™ next to a phrase or image that a company thereby claims as a trademark, or the symbol ®, which signifies that the trademark or service mark has been registered with the relevant trademark registry. Trademarking is a central legal component for corporate branding. In many countries colours (such as the colour orange for champagne and the colour brown for parcel delivery), three-dimensional marks, smells and sounds are also capable of trademark protection. In the European Union, for example, the smell of cut grass has been registered in respect of tennis balls.
The main purpose of trademark law is to protect the public from being confused or deceived about the origin and quality of a product. This is accomplished by the mark owner preventing competitors from using a mark that the consuming public is likely to confuse with theirs, whether because it is identical (such as another computer manufacturer calling themselves "Apple") or sufficiently similar (such as a soft drink called "Popsi", to mimick "Pepsi" though the similarity need not be that great). A trademark is protected when the law allows the mark owner to stop competitors from infringement by these confusingly similar marks. Though registration is available in most countries, showing conclusive right to use the registered mark, many jurisdictions will still protect unregistered marks as long as the owner claiming infringement can prove ownership through earliest and consistent use.
It is not necessary for an infringing use to be intentional, though damages in an infringement lawsuit will be greater if there was intent to deceive.
By identifying the source of goods or services, trademarks help consumers to identify their expected quality and assist in identifying goods and services that meet the individual consumer's expectations. Trademarks also fix responsibility. Without trademarks, a seller's mistakes or low quality products would be untraceable to their source. Therefore, trademarks provide an incentive to maintain a good reputation for a predictable quality of goods. For example, a consumer that purchases and likes Nabisco Saltines has a reasonable expectation that Nabisco Saltines found anywhere in the United States will be of uniform taste and quality. Failure to maintain consistent quality can lead to what is called abandonment of a mark, when the law will no longer protect the trademark because it has ceased to function as an indicator of a particular product. A mark can also be abandoned if a producer simply stops using it for a statutorily defined period of time. If abandonment has occurred, that mark is once again available for general use.
Because the emphasis is on consumer protection, the user of a trademark does not "own" the mark in the same way that it may own a copyright. With some exceptions (discussed below under dilution), the protection of a trademark is limited to certain markets, which can be defined by either the type of product or service, or even a particular geographic area. For example, though "Lexis" and "Lexus" are confusingly similar marks, using the former for an news and information service and the latter for luxury cars means that the public is not likely to confuse one while looking for the other, and so neither can restrict the other's use. A trademark may also be limited geographically, if it can be determined that products or services do not compete because of the physical separation of their markets. Considering the national and even global nature of most manufacturers and distributors, the reach of print and broadcast advertising, and the disregard of the internet for geographic boundaries, this limitation is likely to be an issue in fewer and fewer cases.
The market-specific limitation is not interpreted strictly. Instead, attention is given to how closely related markets are (such as pancake mix and pancake syrup), or how likely it is that the mark owner will "bridge the gap" and move into the other product or geographic market.
Additionally, a trademark is not treated strictly as property because certain words must remain free to identify or describe a class of products in general, to ensure both consumer understanding and competition in the given market (or simply for everyday use). For this reason, a generic term will not be protected (for example, "Apple" as used for apples), or, absent the development of public association with a particular source (known as "secondary meaning"), marks that are merely descriptive of the goods concerned ("red" or "juicy" for apples). Worthy of more protection are "suggestive" marks, which involve more imagination on the part of the consumer to understand a quality of the product than merely descriptive marks (such as the Mercury image for FTD suggesting delivery speed), and arbitrary marks, which are common words but used in a context in which they have no meaning (such as "Apple" for computer). Fanciful marks get the most protection, being invented words or terms (such as "Kodak").
When a mark stops being identified in the public mind with a product's source and instead comes to mean the general class of product, it has become generic and will likely lose protection.
Though trademark law is generally focused on the need for consumer protection, in many jurisdictions the concept of dilution has developed to protect trademarks as a property right, securing the investment the trademark owner has made in establishing and promoting a strong mark. A trademark is diluted when the use of similar or identical trademarks in other non-competing markets means that the trademark in and of itself will lose its capacity to signify a single source. In other words, unlike ordinary trademark law, dilution protection extends to trademark uses that do not confuse consumers regarding who has made a product. Instead, dilution protection law aims to protect sufficiently strong trademarks from losing their singular association in the public mind with a particular product, perhaps imagined if the trademark were to be encountered independently of any product (i.e., just the word Pepsi spoken, or on a billboard).
The strength a trademark must have to deserve dilution protection differs among jurisdictions, though it generally includes the requirement that it must be distinctive, famous, or even unique. Such trademarks would include instantly recognizeable brand names, such as Coca-Cola, or Sony, and unique terms that were invented rather than surnames or ordinary words in language are also likely to get the strongest dilution protection.
Another way of describing the necessary strength of a trademark may establish some basis for dilution protection from a consumer confusion standpoint. Truly famous trademarks are likely to be seen in many different contexts due to branching out or simple sponsorship, to the extent that there may be very few markets, if any, that a consumer would be surprised to see that famous trademark involved in. A prime example may be the past involvement of Coca-Cola in clothing lines.
Dilution is sometimes divided into two related concepts: blurring, or essentially basic dilution, which "blurs" a mark from association with only one product to signify other products in other markets (such as Kodak shoes); and tarnishment, which is the weakening of a mark through unsavory or unflattering associations. Not all dilution protection laws recognize tarnishment as an included concept.
While trademarks protect indications of product source, copyrights protect literary and artistic works, and patents protect useful designs. While those concepts of intellectual property may be separable in theory, in practice many features of products may be placed in more than one category. The shape of a bottle may be eligible for patent protection, for example, but also may come to serve as a unique indicator of the manufacturer and thus as trade dress. Titles and character names from books or movies may also be protectable trademarks while the work as a whole falls under copyright protection. Especially in countries such as the U.S. where copyrights and patents eventually expire into the public domain but trademarks do not, drawing these lines can be very necessary but extremely difficult for lawyers and judges.
Unlike copyrights and patents, trademarks must be actively used and defended. A copyright or patent holder may "sit on" his creation and prevent its use, but a company claiming (even registering) a trademark that fails to make active use of it, or fails to defend it against infringement, may lose the exclusive right to it. Further, if a court rules that a formerly trademarked term has become "generic" through common use (and so the average consumer doesn't realize it is a trademark), it may also be ruled invalid. For example, the Bayer company's trademark "Aspirin" has been ruled generic in the United States, so other companies may use that name for their products as well. (It is still a trademark in Canada). Xerox and Band-Aid are both trademarks that are at risk of becoming generic, which both brands actively try to prevent.
Trademarks are not granted for one-off fixed terms (unlike a patent for example); they are valid as long as they are actively in use (and usually require a renewal fee to be paid to the registry every few years). However, a trademark registration will expire if the owner of the registration fails to comply with the requirements of the trade marks registry for that jurisdiction for maintaining and renewing the registration.
One principle of trademark law in various jurisdictions in Europe is that of 'wrongful threats', which is designed to prevent large corporations from 'bullying' smaller companies. Where one person makes a threat to sue another for trade mark infringement, without a genuine basis or intent to carry out that threat, the threat itself becomes a basis for legal action. This power is used quite frequently; in addition to the obvious cases where the person threatening never had a trade mark it catches out foreign corporations who have a trade mark in their home jurisdiction but not in the country concerned and companies who have a trade mark which has lapsed or is not for the goods/services concerned. The final group who get caught by this provision are those claimants/plaintiffs who sue, and find that the court agrees with a defendant who claims the that mark is invalid for some reason (such as non-use). In that case the mark was never valid, and thus all threats to sue on it were groundless—the defandant can walk away with damages from the claimant.
The advent of the Domain Name System has led to attempts by trademark holders to take over domain names based on trade mark rights. Unlike a trademark, which is restricted by country and class of goods, domain names can be global and not limited by goods or service. This use of trademark law has lead to several high profile court decisions, and the creation of the ICANN Uniform Dispute Resolution Policy and other dispute policies for specific countries (such as Nominet UK's DRS).
As a result of the WTO (formerly GATT) Trade Related Intellectual Property ("TRIPS") agreement, trademark law globally is gradually becoming harmonised. This does not mean that trademarks registered in one jurisdiction automatically become registered in another jurisdiction (although a 'Community Trade Mark' system whereby a single registration with the OHIM registry can lead to a trade mark covering the 15 (soon 24) members of the European Union does exist), but it does mean that many trademark laws are shared by various countries. For example, Art 15 of the TRIPs agreement defines "sign". This definition or variations thereof can be found in a variety of countries' trademark legislation.
The Madrid Agreement allows trademarks registered in one country to be registered in other countries and territories.
Trademark laws of various countries:
Introduction
Consumer Protection and Confusion
Dilution
Relationship to copyright and patent law
Trademarks and Domain Names
Trademark laws vary from country to country
Related and included concepts
Additional Resources
Source: adapted by the editor from Wikipedia, the free encyclopedia under a copyleft GNU Free Documentation License (GFDL) from the article "Trademark."
Synonyms: TrademarkSynonyms: earmark (n), hallmark (n), stylemark (n). (additional references) |
| Domain | Usage | |
Screenplays | That's a trademark move -- don't touch that one. (My Best Friend's Wedding; writing credit: Ronald Bass) I'm sick of being a trademark married to a slogan. (Design for Living; writing credit: Noel Coward; Ben Hecht) | |
Movie/TV Titles | The Devil's Trademark (1928) Her Husband's Trademark (1922) | |
Source: compiled by the editor from various references; see credits. | ||
| Domain | Title | ||
References | |||
Books |
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Periodicals |
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Music |
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High Tech |
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Source: compiled by the editor from various references; see credits. | |||
| Thumbnail | Description & Credit | Thumbnail | Description & Credit |
 | Trademark of the Santa Fé showing map of America on globe and train routes with a lion on top of globe. Credit: Library of Congress. |  | Two men recording Leo, the lion, for Metro-Goldwyn-Mayer trademark. Credit: Library of Congress. |
 | Bovox trademark - an essence of beef Makes real strength. Credit: Library of Congress. |  | Trademark of blacksmith. Des Lacs, North Dakota. Credit: Library of Congress. |
Source: pictures compiled by the editor from various references; see picture credits. | |||
| Subject | Topic | Quote |
Health | Another tool in treating nicotine addiction is a medication that goes by the trademark Zyban. (references) | |
Business | On March 1, 1998, the revised trademark law became effective and the new patent court was established. (references) | |
As one might expect, each of the European countries has detailed trademark laws and registration is essential. (references) | ||
Intellectual Property Rights (IPR), including trademark and patent laws, have been weakly enforced so far in Egypt. (references) | ||
Economic History | Burma | Burma has no trademark law. (references) |
Guyana | Patent and trademark infringement is also common. (references) | |
Romania | The period for contesting a trademark is six months. (references) | |
Political Economy | OMAN | Oman has a trademark law, which it enforces. (references) |
ROMANIA | Modern patent, trademark, and copyright laws are in place. (references) | |
CHILE | Local use of a trademark is not required for registration. (references) | |
Trade | Egypt | A. 1. The product's name or its trademark. (references) |
Norway | This is Norway's official patent office, handling trademark registration, innovation protection, etc. (references) | |
Vietnam | With the exception of the trademark, labels of domestically distributed products must be in Vietnamese. (references) | |
Travel | Korea | Americans visiting Korea should be aware of possible trademark and copyright violations when purchasing articles in Korea. (references) |
Source: compiled by the editor from ICON Group International, Inc.; see credits. | ||
| "Trademark" is generally used as a noun (singular) -- approximately 95.97% of the time. "Trademark" is used about 149 times out of a sample of 100 million words spoken or written in English. Its rank is based on over 700,000 words used in the English language. Some parts-of-speech are not covered due to the samples used by the British National Corpus. (note: percents less than one-hundredth of one percent have been omitted) |
| Parts of Speech | Percent | Usage per 100 Million Words | Rank in English |
| Noun (singular) | 95.97% | 143 | 26,451 |
| Lexical Verb (base form) | 3.36% | 5 | 157,705 |
| Lexical Verb (infinitive) | 0.67% | 1 | 339,140 |
| Total | 100.00% | 149 | N/A |
Source: compiled by the editor from several corpora; see credits.
Expressions using "trademark": protection of a trademark ♦ registered trademark. Additional references. | |
| Hypenated Usage | |
Ending with "trademark": now-trademark. | |
| Source: compiled by the editor from various references; see credits. | |
| The following statistics estimate the number of searches per day across the major English-language search engines as identified by various trade publications. Hyperlinks lead to commercial use of the expression at Amazon.com. |
| Language | Translations for "trademark"; alternative meanings/domain in parentheses. | ||||||||||||||||||||||||||||||||||||||||||||||
Albanian | tipar dallues (characteristic, earmark), shenjë dalluese (badge, difference, hallmark, insignia, logo), markë fabrike. (various references) | ||||||||||||||||||||||||||||||||||||||||||||||
Arabic | علامة تجارية (brand). (various references) | ||||||||||||||||||||||||||||||||||||||||||||||
Bulgarian | регистрирам фабрична марка, фабрична марка (brand), търговска марка (chop, logo), отличителен знак (cognizance, note, stamp), отличителен белег (badge, character, characteristic, difference, feature, marker, note, trait), поставям фабрична марка на. (various references) | ||||||||||||||||||||||||||||||||||||||||||||||
Chinese | 牌號 , 牌子 (sign), 商標 , 商 (logo, Logos, Trade-mark). (various references) | ||||||||||||||||||||||||||||||||||||||||||||||
Czech | ochranná známka, obchodní znaèka. (various references) | ||||||||||||||||||||||||||||||||||||||||||||||
Danish | varemaerke (brand, brand name, crest, trade mark, trade name, trade-mark, tradename), varemærker (brand, brand name, trade mark, trade name, trade-mark, tradename), varebetegnelse (brand, brand name, trade mark, trade name, trade-mark, tradename), mærkat (brand, brand name, trade mark, trade name, trade-mark, tradename), label (brand, brand name, trade mark, trade name, trade-mark, tradename), handelsbetegnelse (brand, brand name, trade mark, trade name, trade-mark, tradename), firmamaerke (brand, brand name, trade mark, trade name, trade-mark, tradename). (various references) | ||||||||||||||||||||||||||||||||||||||||||||||
Dutch | warenmerk, merk (mark), handelsmerken (brand, brand name, trade mark, trade name, trade-mark, tradename), handelsmerk (brand, brand name, trade mark, trade name, trade-mark, tradename), handelsbenaming (brand, brand name, trade mark, trade name, trade-mark, tradename), fabrieksmerken (brand, brand name, trade mark, trade name, trade-mark, tradename). (various references) | ||||||||||||||||||||||||||||||||||||||||||||||
Farsi | علامت تجارتی گذاشتن , علامت تجارتی . (various references) | ||||||||||||||||||||||||||||||||||||||||||||||
Finnish | tavaramerkki (brand). (various references) | ||||||||||||||||||||||||||||||||||||||||||||||
French | MD (Registered Trade Mark), marque de service, marque de fabrique,de commerce ou de service, marque de fabrique, marque de commerce, marque déposée (Registered Trade Mark), marque déposé, marque commerciale (trade mark, trade name, trade-mark, tradename), marque (trade mark, trade name, trade-mark, tradename). (various references) | ||||||||||||||||||||||||||||||||||||||||||||||
German | Warenzeichen (brand, trade-mark), Schutzmarke (brand, brand name, trade mark, trade name, trade-mark, tradename), Marke (badge, brand, check, chip, code, coupon, disk, label, make, Mark, marker, marque, record, secret code, spot, stamp, tag, ticket, token, voucher), Handelsmarke (trademarks). (various references) | ||||||||||||||||||||||||||||||||||||||||||||||
Greek | σήμα κατατεθέν (trade mark), σήμα εργοστάσιου (trade mark), σήμα (badge, banderol, banderole, pennant, sign, signal), φίρμα επωνυμία (trade mark), εμπορικό σήμα (trade mark). (various references) | ||||||||||||||||||||||||||||||||||||||||||||||
Hebrew | סימן מסחרי (brand). (various references) | ||||||||||||||||||||||||||||||||||||||||||||||
Hungarian | védjegy (brand, chop). (various references) | ||||||||||||||||||||||||||||||||||||||||||||||
Indonesian | merek dagang, cap (feature, printed, quality, seal). (various references) | ||||||||||||||||||||||||||||||||||||||||||||||
Italian | marchio di fabbrica (chop, proprietary brand). (various references) | ||||||||||||||||||||||||||||||||||||||||||||||
Japanese Kanji | トルコ帽 (fez, house trailer, sweat pants, sweat shirt, sweatshirt, tolerance, Tolstoy, toreador, toreador pants, tornado, torso, tortilla, trace, tracer, tracing, tracing paper, trade, trade money, trade show, trade union, trade-off, trader, trading, trading company, trail bike, trailer, trailer bus, trailer house, train, trainer, training, training camp, training pants, training shoes, training wear, training wizard, tray, tread, trekker, tremolo, trench coat, trenching, troubadour, very good), 商標 . (various references) | ||||||||||||||||||||||||||||||||||||||||||||||
Japanese Katakana | トレードマーク , しょうひょう (certificate, chit, voucher). (various references) | ||||||||||||||||||||||||||||||||||||||||||||||
Korean | 상표 (label, Trade-mark). (various references) | ||||||||||||||||||||||||||||||||||||||||||||||
Manx | cowrey keirdey. (various references) | ||||||||||||||||||||||||||||||||||||||||||||||
Pig Latin | ademarktray marca registrada (brand, registered mark), marca comercial (brand, brand name, trade mark, trade name, trade-mark, tradename). (various references) фабричная марка (brand, trades-union-mark), клеймо (brand, chop, countermark, earmark, note, seal, stamp, stigma, stigmata), заводская марка. (various references) zaštitni znak. (various references) marca de fábrica (brand name), marca (brand, distinguishing mark, footprint, landmark, make, March, Mark, name tab, note, patent, performance, scratch, seamark, stamp). (various references) varumärke (trade mark), fabriksmärke. (various references) ticari marka, marka (brand, check, chip, chop, identification mark, imprint, initials, jetton, Mark, stamp, title, token), belirgin özellik. (various references) фабрична марка, відмітний знак (cognizance). (various references) | ||||||||||||||||||||||||||||||||||||||||||||||
Derivations | |
Words beginning with "trademark": trademarked, trademarking, trademarks. (additional references) | |
| |
"Trademark" is suggested in spellcheckers for the following: trademak. (additional references) | |
| Source: compiled by the editor, based on several corpora (additional references). | |
| # of Phoneme Matches | Pronunciation | Word(s) rhyming with "trademark" (pronounced trā"dmÄ'rk) |
| 5 | -d m Ä' r k | landmark. |
| 4 | -m Ä' r k | benchmark, birthmark, earmark, hallmark, pockmark, postmark, watermark. |
| 3 | -Ä' r k | aardvark, ballpark, matriarch, meadowlark, monarch, oligarch, patriarch, Skylark. |
Source: compiled by the editor (additional references); see credits. | ||
Scrabble® Enable2K-Verified Anagrams | |
| Words within the letters "a-a-d-e-k-m-r-r-t" | |
-2 letters: earmark. | |
-3 letters: darker, darter, demark, dreamt, errata, karate, krater, marked, marker, market, marred, marted, medaka, ramate, remark, retard, tarred, trader. | |
-4 letters: armed, armer, armet, damar, darer, dater, derat, derma, drake, drama, dream, drear, karat, karma, madre, makar, maker, mated, mater, radar, raked, raker, ramet, rared, rated, rater, rearm, reata, taker, tamed, tamer, tared. | |
| Words containing the letters "a-a-d-e-k-m-r-r-t" | |
+1 letter: trademarks. | |
+2 letters: trademarked, watermarked. | |
+3 letters: trademarking. | |
| Source: compiled by the editor from various references; see credits. SCRABBLE® is a registered trademark. All intellectual property rights in and to the game are owned in the U.S.A and Canada by Hasbro Inc., and throughout the rest of the world by J.W. Spear & Sons Limited of Maidenhead, Berkshire, England, a subsidiary of Mattel Inc. Mattel and Spear are not affiliated with Hasbro. | |
Hexadecimal (or equivalents, 770AD-1900s) (references)54 72 61 64 65 6D 61 72 6B |
| Leonardo da Vinci (1452-1519; backwards) (references)
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| American Sign Language (origins from 1620-1817 in Italy and, especially, France) (references)
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| Semaphore (1791, in France) (references)
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| Braille (1829, in France) (references)
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Morse Code (1836) (references)- .-. .- -.. . -- .- .-. -.- |
| Dancing Men (Sir Arthur Conan Doyle, 1903) (references)
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Binary Code (1918-1938, probably earlier) (references)01010100 01110010 01100001 01100100 01100101 01101101 01100001 01110010 01101011 |
HTML Code (1990) (references)T r a d e m a r k |
ISO 10646 (1991-1993) (references)0054 0072 0061 0064 0065 006D 0061 0072 006B |
| British Sign Language (Fingerspelling, BSL; 1992, British Deaf Association Dictionary of British Sign Language) (references)
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Encryption (beginner's substitution cypher): (references)548467707179678477 |
| 1. Definition 2. Synonyms 3. Crosswords 4. Usage: Modern | 5. Usage: Commercial 6. Images: Slideshow 7. Images: Photo Album 8. Quotations: Non-fiction | 9. Usage Frequency 10. Expressions 11. Expressions: Internet 12. Translations: Modern | 13. Derivations 14. Rhymes 15. Anagrams 16. Orthography | 17. Bibliography |
Copyright © Philip M. Parker, INSEAD. Terms of Use.
