TrademarkWhat is a trademark？Trademark is any visible sign or device used by a business en

Trademark

What is a trademark？

Trademark is any visible sign or device used by a business enterprise to identify its goods and distinguish them from those made or carried by others. Trademarks may be words or groups of words, letters, numerals, devices, names, the shape or other presentation of products or their packages, color combinations with signs, combinations of colors, and combinations of any of the above signs.

What are the functions of the trademark？

By indicating the origin of goods and services, trademarks serve two important purposes. They provide manufacturers and traders with protection from unfair competition (one person representing or passing for sale his goods as the goods of another), and they provide customers with protection from imitations (assuring them of a certain expected quality). In terms of the protection of the rights of trademark holders, the law in most countries extends beyond the rule of unfair competition, for a trademark is considered the property of the holder; and, as such, unauthorized use of the trademark constitutes not only misrepresentation and fraud but also a violation of the holder's private property fights.

How to register a trademark？

In most countries, registration is a prerequisite (先决条件) for ownership and protection of the mark. In the United States, however, the trademark right is granted by the mere use of the mark; registering the mark provides the owner only with certain procedural advantages and is not a prerequisite for legal protection.

It is not necessary for the mark to be in use before a registration application is filed, although most countries require applicants to have a sincere intent to use the mark after registration. Formerly, the United States was one of the few countries requiring actual use prior to registration. Under the Trademark Law Revision Act of 1988, the United States permits registration upon application showing an intent to use the trademark in the near future.

In many countries, ownership of a trademark is not acknowledged until the mark has been registered and gone uncontested (无异议的) for a given period of time, so as to afford protection to a prior user of the mark. Even after that period has passed, the prior user may move to have the registration canceled. After a certain number of years (from three to seven, depending on the country), the registration and ownership become uncontested.

For a mark to be registered, it must be distinctive. In many cases a mark, when first brought into use, may not have been distinctive, but over time the public may have attached a secondary meaning to it, forming a specific association between the mark and the product, thus making the mark distinctive, hence registrable.

How to treat the infringement？

When a question of infringement (unauthorized use) of a trademark arises, the primary legal question addressed in court is whether the accused infringer's use of the mark is likely to confuse the purchasing public. In most countries, including the United States, protection against infringement extends to goods or services similar to those covered by the registration. In countries following British law (same 66 nations), an infringement action can, however, be brought only for the precise goods identified in the registration.

How to deal with the transfer of a trademark？

For a long time the rights of a trademark could not be transferred separately from the business to which it was attached. Now, however, because trademarks are viewed as property, they may be sold, inherited, or rented, as long as such a transfer of rights does not deceive the public. In most countries a public notice of such a transfer must be given. A common form. of transfer is international licensing, whereby a trademark holder allows the use of his mark

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C．NG