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What is a trademark?
Trademarks. We see them everywhere. But what exactly is the definition of a trademark? Legally, a trademark is any sign, symbol or external appearance that distinguishes a product or service from competing products or services. A trademark has different functions, but in particular it provides brand recognition, identification and distinctiveness for consumers.
Examples of trademarks
The definition of a trademark, as described above, is actually quite broad. In everyday practice, there are various types of trademarks, such as:
- Brand names
- Logos
- Shape marks
- Sound marks
- Colour marks
Examples of brand names include IKEA or Mercedes-Benz, while famous logos include the apple mark of Apple. A design may also be a trademark, such as the Coca-Cola bottle. But those aren't the only types of trademarks. Colours can also fulfil the function of a trademark (for instance the yellow of Yellow Pages), as can letters or abbreviations (BMW), figures (X5), a family name (Louis Vuitton) and even smells and sounds.
What can or can not be a trademark>
What can you protect as a trademark?
Trademark law seeks to protect a company or a product’s distinguishing name or features, so as to reduce confusion in the marketplace. When determining whether something is distinctive enough for registration, a number of elements must be taken into account. Consider, for example, the properties of the trademark. Is the brand name generic? Apple is a distinctive trademark for computers and portable media, but it would not be for apples (the fruit).
In trademark law, a distinction is often made between an individual trademark and a so-called collective trademark. An individual trademark is a trademark that distinguishes one company’s products or services from those of other companies (eg KLM). A collective trademark is a trademark that distinguishes one or more common characteristics of products or services. The holder of a collective trademark does not use the trademark itself, but monitors the use of the trademark by others who must comply with certain criteria before they are allowed to use it. These criteria have to be laid down in ‘regulations for use and control of the trademark’, which must be submitted when the trademark is filed. Collective trademarks give consumers a certain guarantee regarding the nature and quality of the products or services for which they are used. Examples of collective trademarks include the Woolmark or Lloyd’s Register Quality Assurance.
What cannot be a trademark?
Not all characters or symbols may be registered as a trademark. The law provides that certain trademark applications for registration can be refused. The trademark or the shape of a product that lacks distinctiveness, for example; or trademarks that are contrary to public order or morality. This includes trademarks that are offensive, racist or blasphemous. In addition, armorial bearings, flags and other state emblems cannot be registered as trademarks. Finally, trademarks that mislead the public are not allowed. For example, a label on a wine bottle that includes the name ‘Beaujolais’ cannot be registered for wines that are not produced in Burgundy.
The importance of distinctiveness
In trademark law, the distinctiveness of the trademark occupies centre stage. The name of the product or service must be distinguishable from similar products or services of competitors. Trademarks and brand names must not be confusing therefore. The greater the distinctiveness, the stronger your brand will be. And the stronger the brand, the better your chances of taking action against trademark infringers or copyists. If you would like to know more about strong and weak brands and why it is important to protect them, please contact Novagraaf.
Would you like to know more about trademarks?
Would you like to know more about strong and weak trademarks and why it is important to search, register and protect trademarks or what to do if your trademark is infringed? Please get in touch with Novagraaf. You can do this by using the contact form on the right top of the page.
