Trademark is an important form of Industrial Property. It plays a key role in a consumer economy. As in the case of other forms of Intellectual Properties, Trademarks also exhibit the dialectics between public and private interests. As a source identifier, a trademark enables the consumers to identify the origin of the goods/services. The consumer thus gets the goods/services of his/her choice. On the other hand, the originator of the goods (for example the company that manufactures the goods) gets protection for the mark. Most national laws on trademarks are designed to balance this duality of interests. Further, the national laws define the legal rights of the owners of trademarks and prescribe the boundaries of such legal rights. Unregistered trademarks are protected under the principles of common law in many countries.
What Marks are Registrable
All marks are not registrable. For a mark to be registrable, it must conform to certain statutory prescriptions. One such fundamental prescription is that a mark to be registrable must be “distinctive”. The quality of distinctiveness, distinctive character or capable of distinguishing is a basic principle that finds place in most national laws. A word/device having a direct reference to the character or quality of goods/services is not registrable. However a word having direct reference to the character or quality of goods/services is registrable if it has acquired distinctiveness through long and continuous use. There are several other principles, all tested by a number of judicial decisions, elaborating the registrability of trademarks.
Trademarks Administration System
The trademarks registration systems in most countries forms part of unified intellectual property administration system. An application for the registration of trademarks must be filed at the office designated for purposes of granting trademarks registration. Ordinarily this function is performed by the national IP Offices. The trademarks office will conduct an examination of the application, make a search to identify if there exist prior registrations and advertise the trademarks before accepting the application. Once the application is accepted, the mark will be registered in the national trademarks register and a certificate of registration will be issued. Typically one term of registration is 10 years, which is extendible from time to time.