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A trademark is the intellectual property protection that covers the use of distinctive markings used in commerce and trade. For example, a corporate logo stamped on a company’s products might be covered by a trademark. Trademarks are important because they allow consumers to rapidly distinguish between different companies’ products and encourage the development of goodwill between a successful company and the public.
To have a trademark means that a company has applied for, and obtained, the exclusive right to use a particular name or symbol for the sale of their products or services. For example, a company might apply for a trademark for their corporate logo which is embossed on all the products they sell.
Having a trademark allows a company to develop a reputation with their customers. A company that consistently creates excellent, innovative, or otherwise interesting merchandise can expect their trademark to become associated with that level of quality. Having a trademark also allows companies to take action against any other company that tries to use that same mark for confusingly similar products or services.
In most countries, trademark registrations have a term of ten years, but they can be renewed indefinitely. Some countries require proof that the trademark is still being used before it can be renewed but even if no proof of use is required, the failure to use a trademark makes it possible for others to cancel the registration.
Trade dress infringement occurs when a company packages or designs its products in a way that is likely to make consumers think the product comes from another company that is protected by a trademark. For example, imagine that Company A has a trademark it places on its products. Company B creates a similar product and packages it exactly (or almost exactly) like Company A’s products. Company B might be guilty of trade dress infringement if Company A’s trade dress is sufficiently distinctive.
Because trademarks are enforced privately and trademark laws vary from country to country, the penalty for infringement of a trademark can vary wildly. The infringing party could be required to destroy the offending merchandise, forfeit any profits made using the infringed trademark, pay damages suffered by the holder of the trademark, and pay the costs of any legal fees associated with the trademark action.
A trademark owner could bring an action for trademark infringement in a court that has jurisdiction over the subject matter and the parties. The success or failure of the action would depend on the specific facts of the case and the trademark owner may, even if successful, be required to pay some or all of your legal fees himself/herself.
Attorney advertising. The material contained on this page is only a general review of the subjects covered and does not constitute legal advice. No legal or business decision should be based on its contents.
Turner P. Smith
Intellectual Property Law
Intellectual Property Litigation
Media, Technology and Entertainment Law
+1 212 696 6000