Trademarks and protection of your intellectual property rights

[KevinClarke]

Trademark is a recognizable design, expression or sign which distinguishes a product or a service of a certain source from those of others. Sometimes, a trademark used to identify a service, is called a service mark, especially in United States. Owners of the trademark can be business organizations, legal entities or individuals and it is usually located on a label, a package, a voucher, the product itself or sometimes even on company buildings. The main purpose of a trademark is to communicate that the particular product is from a unique source and to differentiate it from other, similar products. For example, a registration of a trademark serves as a protection for a brand name to preserve its original authorship.

Trademarks are protected by the rights of intellectual property. Intellectual property refers to a creation of the intellect and a monopoly on this intellect that is assigned to the owner of this intellectual property and is protected by law. Trademarks, patents, copyright and industrial design rights are all a part of intellectual property rights. Any unauthorised usage of the trademark by producing or trading a counterfeit consumer good is a violation of intellectual property rights, known as brand piracy. In case of such violation, the owner of the trademark can pursue a legal action against a trademark infringement.

Reasons to register and protect your trademark
Some countries, including United States and Canada, recognize common law trademark rights, which allow taking action to protect a brand name also if a trademark on it has not been registered. Still, it offers significantly less legal protection in comparison to registered trademarks. Meanwhile, most countries require a formal registration of the trademark in order to pursue a legal action against a trademark infringement. Below is a concise instruction on how to go through the process of registering your own trademark.

If the brand name is used already before the registration of the trademark, it is possible to apply for the registration based on the use in commerce concept, declaring that the brand name is in use in commerce and providing with a date, when it was first used. The declaration is usually included in the standard application form, which then needs to be submitted to responsible office with a specimen showing the use of the brand name. Before submitting the registration form, it is necessary to search for already existing trademark on a particular brand name – this can be done online.

Recent big trademark violation cases
There can be found numerous trademark infringement cases in the history of intellectual property rights. Each of them serves as a reminder that a violation of intellectual property is as serious offense as violation of physical property.

#1 Louis Vuitton vs Louis Vuiton Dak
Fashion designer Louis Vuitton recently won a trademark lawsuit against a South Korean fried chicken restaurant, Louis Vuiton Dak. The court ruled that not only the name of the restaurant is too similar to the fashion brand, also its logo and packaging closely resembled designer’s iconic imagery.

#2 Starbucks vs Freddocino
In 2016, Starbucks took a legal action against the company owning the Coffee Culture Cafe in New York after it launched a drink called the Freddocino. Starbucks owns a trademark for the term Frappucino and states that not only both names have too many similarities, but also both drinks have the same structure and visual appearance.

#3 3M vs 3N
3M commenced a legal action against a Chinese company using a brand name 3N and won stating that the company managed to acquire clients and a significant market share thanks to similarities with the 3M and its high distinctiveness and reputation of this brand name.