What is a Trademark - Really?

Every one of us is familiar with trademarks, even if that is not the name by which we know them. As often as not these days, when someone refers to a trademark the words they use are along the lines of "branding" and "logo". The trademark is the recognizable impression, or symbol, of a private enterprise (whether a company or an individual) which identifies them for whom they are, and allows their products to be easily recognizable. Most people will be familiar with the basic concept of a trademark, having seen the letters TM appearing above a logo on a product, or the ® symbol which appears next to a registered trademark.

Although the basic use of a trademark is something which is taken as read in everyday consumer circles, there is a need to have it registered legally for the purposes of intellectual property protection. Everybody recognizes some of the more familiar trademarks - we will not mention any by name here as they are familiar enough. But if someone were to attempt to copy the product or the service of a trademarked company while using a logo similar or identical to theirs, then the company with the registered trade mark would be legally entitled to pursue their rival in court with a cease and desist order, as well as potentially being able to claim some of the proceeds of the offending business.

Trademark infringement need not necessarily be deliberate in order to be pursued successfully through the courts. A reasonable example of this may be where a company which has as its name a familiar surname or Christian name. The company which has registered this as a trademark may successfully sue for infringement someone who has that surname or Christian name and is trading under it in the same business area. Although the offence may be entirely accidental and innocent, the company which holds the registered trademark has a case to say that their business could be negatively affected by any arising confusion, and as they were the first to register the name as a trademark, they hold the rights to it as a commercial entity.

It is fair to say, though, that in a case of accidental infringement, the damages in any lawsuit will be lower than if there was a specific intention to deceive customers. The overarching importance of trademarks is that they prevent someone from deciding to go into a certain field of business using an already familiar name. If one were to open a restaurant and give it the name of an established, well reputed chain of restaurants (or even one particularly well-known one), then it could potentially benefit from the association that will result in people's minds. Trading on someone else's reputation could be seen as a form of identity theft, and will naturally be subject to appropriate penalties. The harshness or otherwise of that penalty will vary depending on the circumstances.

Disclaimer: This article is for informational and entertainment purposes only, and should not be construed as legal advice on any subject matter.

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