Fundamental concepts of trademark

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Brand name and trade mark

Brand name. The brand name is often used interchangeably within "brand", although it is more correctly used to specifically denote written or spoken linguistic elements of any product. In this context a "brand name" constitutes a type of trademark, if the brand name exclusively identifies the brand owner as the commercial source of products or services. A brand owner may seek to protect proprietary rights in relation to a brand name through trademark registration. Advertising spokespersons have also become part of some brands, for example: Mr. Whipple of Charmin toilet tissue and Tony the Tiger of Kellogg's.

Brand names will fall into one of three spectrums of use - Descriptive, Associative or Freestanding.

Descriptive brand names assist in describing the distinguishable selling point(s) of the product to the customer (e.g. Snap Crackle & Pop or Bitter Lemon).

Associative brand names provide the customer with an associated word for what the product promises to do or be (e.g.Walkman, Sensodyne or Natrel)

Finally, Freestanding brand names have no links or ties to either descriptions or associations of use. (e.g. Mars Bar or Pantene)

The act of associating a product or service with a brand has become part of pop culture. Most products have some kind of brand identity, from common table salt to designer jeans. A brandnomer is a brand name that has colloquially become a generic term for a product or service, such as Band-Aid or Kleenex, which are often used to describe any kind of adhesive bandage or any kind of facial tissue respectively.

Trade mark. A trademark or trade mark, represented by the symbols ™ and ®, or mark is a distinctive sign or indicator used by an individual, business organization or other legal entity to identify uniquely the source of its products and/or services to consumers, and to distinguish its products or services from those of other entities. A trademark is a type of intellectual property, and typically a name, word, phrase, logo, symbol, design, image, or a combination of these elements. There is also a range of non-conventional trademarks comprising marks which do not fall into these standard categories.

The owner of a registered trademark may commence legal proceedings for trademark infringement to prevent unauthorized use of that trademark. However, registration is not required. The owner of a common law trademark may also file suit, but an unregistered mark may be protectable only within the geographical area within which it has been used or in geographical areas into which it may be reasonably expected to expand.

The term "trademark" is also used informally to refer to any distinguishing attribute by which an individual is readily identified, such as the well known characteristics of celebrities. When a trademark is used in relation to services rather than products, it may sometimes be called a service mark, particularly in the United States.

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Certification and its types

Certification refers to the confirmation of certain characteristics of an object, person, or organization. This confirmation is often, but not always, provided by some form of external review, education, or assessment. One of the most common types of certification in modern society is зprofessional certification, where a person is certified as being able to competently complete a job or task, usually by the passing of an examination.

There are two general types of professional certification: some are valid for lifetime, once the exam is passed. Others have to be recertified again after a certain period of time. Also, certifications can differ within a profession by the level or specific area of expertise they refer to. For example, in IT Industry there are different certifications available for Software Tester, Project Manager, and Developer.

Certification does not refer to the state of legally being able to practice or work in a profession. That is licensure. Usually, licensure is administered by a governmental entity for public protection purposes and certification by a professional association. However, they are similar in that they both require the demonstration of a certain level of knowledge or ability.

The other most common type of certification in modern society is product certification. This refers to processes intended to determine if a product meets minimum standards, similar to quality assurance.

There are three general types of certification. Listed in order of development level and portability, they are: corporate (internal), product-specific, and profession-wide.

Corporate, or internal certifications, are made by a corporation or low-stakes organization for internal purposes. For example, a corporation might require a one-day training course for all sales personnel, after which they receive a certificate. While this certificate has limited portability - to other corporations, for example - it also is the simplest to develop.

Product-specific certifications are more involved, and are intended to be referenced to a product across all applications. This approach is very prevalent in the information technology (IT) industry, where personnel are certified on a version of software or hardware. This type of certification is portable across locations (for example, different corporations that use that software), but not across other products.

The most general type of certification is profession-wide. In order to apply professional standards, increase the level of practice, and possibly protect the public (though this is also the domain of licensure), a professional organization might establish a certification. This is intended to be portable to all places a certificant might work. Of course, this generalizability increases the cost of such a program; the process to establish a legally defensible assessment of an entire profession is very extensive. An example of this is a certified public accountant, that would not be certified for just one corporation or one piece of accountancy software but for general work in the profession.

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Fundamental concepts of trademark

The essential function of a trademark is to exclusively identify the commercial source or origin of products or services, such that a trademark, properly called, "indicates source" or serves as a "badge of origin". The use of a trademark in this way is known as "trademark use". Certain exclusive rights attach to a registered mark, which can be enforced by way of an action for trademark infringement, while unregistered trademark rights may be enforced pursuant to the common law tort of passing off.

It should be noted that trademark rights generally arise out of the use and/or to maintain exclusive rights over that sign in relation to certain products or services, assuming there are no other trademark objections.

In order to register trademarks the different goods and services have been classified by the International (Nice) Classification of Goods and Services into 45 Trademark Classes (from 1 to 34 includes goods, and from 35 to 45 services). The idea of this system is to specify and limit the extension of the property right (Intellectual Property), by determining which goods or services are covered by the mark, and at the same time unify the classification system in countries around the World.

The law considers a trademark to be a form of property. Proprietary rights in relation to a trademark may be established through actual use in the marketplace, or through registration of the mark with the trademarksoffice(or "trademarks registry") of a particular jurisdiction. Certain jurisdictions generally do not recognize trademarks rights arising through use (e.g. China or European Union). If trademark owners do not hold registrations for their marks in such jurisdictions, the extent to which they will be able to enforce their rights through trademark infringement proceedings will therefore be limited. In cases of dispute, this disparity of rights is often referred to as "first to file" as opposed to "first to use". Other countries such as Germany offer a limited amount of common law rights for unregistered marks where to gain protection, the goods or services must occupy a highly significant position in the marketplace - where this could be 40% or more market share for sales in the particular class of goods or services.

A registered trademark confers a bundle of exclusive rights upon the registered owner, including the right to exclusive use of the mark in relation to the products or services for which it is registered. The law in most jurisdictions also allows the owner of a registered trademark to prevent unauthorized use of the mark in relation to products or services which are identical or "colourfully" similar to the "registered" products or services, and in certain cases, prevent use in relation to entirely dissimilar products or services. The test is always whether a consumer of the goods or services will be confused as to the identity of the source or origin. An example maybe a very large multinational brand such as "Sony" where a non-electronic product such as a pair of sunglasses might be assumed to have come from Sony Corporation of Japan despite not being a class of goods that Sony has rights in.

Once trademark rights are established in a particular jurisdiction, these rights are generally only enforceable in that jurisdiction, a quality which is sometimes known as territoriality. However, there is a range of international trademark laws and systems which facilitate the protection of trademarks in more than one jurisdiction.

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What is a patent?

A patent protects new inventions and covers how things work, what they do, how they do it, what they are made of and how they are made. It gives the owner the right to prevent others from making, using, importing or selling the invention without permission.

Your invention must:

· be new

· have an inventive step that is not obvious to someone with knowledge and experience in the subject

· be capable of being made or used in some kind of industry

· not be:

* a scientific or mathematical discovery, theory or method
* a literary, dramatic, musical or artistic work
* a way of performing a mental act, playing a game or doing business
* the presentation of information, or some computer programs
* an animal or plant variety
* a method of medical treatment or diagnosis
* against public policy or morality.

If your invention meets these requirements, you may want to consider applying for a patent.

If you have a granted patent, you must renew it every year after the 5th year for up to 20 years protection.

Benefits of patent protection

A patent gives you the right to stop others from copying, manufacturing, selling, and importing your invention without your permission. The existence of your patent may be enough on its own to stop others from trying to exploit your invention. If it does not, it gives you the right to take legal action to stop them exploiting your invention and to claim damages.

The patent also allows you to:

· sell the invention and all the intellectual property (IP) rights

· license the invention to someone else but retain all the IP rights

· discuss the invention with others in order to set up a business based around the invention.

The public also benefit from your patent because we publish it after 18 months. Others can then gain advance knowledge of technological developments which they will eventually be able to use freely once the patent ceases.