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Trademarks

Trademarks are commercial symbols to which legally enforceable rights are attached, which are intended to protect businesses' brand value (known as “goodwill”) and protect consumers against confusion about the source of goods or services caused by deceptive branding practices.

Key Concepts

Trademarks are adopted by businesses and then recognized as private property through the operation of law. Trademarks are the legal side of branding. Whereas a brand operates like the personality attaching to goods and/or services for marketing purposes, a trademark is the legally recognized form of the brand that can be protected against unauthorized use by others. Whereas brand meaning resides in the minds of consumers, the law attributes the meaning and value of trademarks to their owners.

Trademark law governs many aspects of branding practice. Trademarks give legal recognition and protection to brand icons. This typically involves the registration of a sign as a trademark, which its owner can then protect by invoking the legal system. Often “well-known marks” from overseas are also protected, as are special types of trademarks such as “geographical indications” that signify areas where goods are produced (e.g., Champagne). In some jurisdictions, unregistered trademarks are protected through the doctrine of “passing as” and may be indicated by the symbol. These laws give private monopolies over certain uses of communicative symbols that are recognized as trademarks.

Trademark regimes exist in almost all countries, and all World Trade Organization (WTO) member states must include minimum levels of trademark recognition and protection in their laws. What qualifies as a trademark varies between jurisdictions but includes words, slogans, logos (devices), shapes, colors, tastes, sounds, and smells that are used in relation to specified goods, services, or both. Typical trademarks include company and product names (e.g., Coca-Cola), logos used to signify products and services (e.g., the Nike “swoosh”), and celebrities' names and images. Not all brand icons are trade-marked, but all trademarks are legally intended to operate as brands that indicate the source of goods and services. Trademarks are among the most valuable assets of many businesses.

History

Legally regulated branding systems have existed since time immemorial in the form of branding animals, tribal markings, heraldry, and the application of creators' marks such as pottery marks and hallmarks on precious metals. These indicated ownership, affiliation, or source.

Modern trademark regimes arose during the Industrial Revolution in the eighteenth and nineteenth centuries in Europe and the United States, when developments such as mass manufacturing and long distance transportation led to the sale of goods outside their local areas of production. As consumers' personal relationships with producers were displaced by relationships with trademarks that signified products' sources, consumer loyalty gradually shifted from producers to brands. This gave new significance to indicia of reputation such as the cutlers' marks, clothiers' marks, printers' marks, hallmarks, and so on, issued by various guilds. Although early mention of disputes relating to traders' marks can be traced as far back as the 1618 English case of Southern v. How (involving the infringement of a clothier's mark), it was not until 1875 that the British government decided to introduce a system of registering trademarks. The purpose of the register was to simplify the problem traders had in proving ownership of a “common law” (i.e., unregistered) mark. In the United States, the first federal trademark law was passed in 1870 but then overturned as unconstitutional. Its replacement, the Trademark Act of 1881, added trademark registration to the duties of the U.S. Patent Office.

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