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The basics of a TM


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13 February 2013

What is a Trade Mark?

It is a name that is often thrown around in the intellectual property world, but for a beginner its terms like these that can easily confuse you. Weve all heard the term, but what actually is a trade mark?

S.1 Trade Marks Act 1994 requires a trade mark to be:

- Sign that is;

- Capable of being represented graphically; and

- Capable of being distinguishable.

For example, Coca Cola is a trademark as their label is a sign that can be represented graphically - it is on every bottle they produce - and it is distinguishable - one would know what was Coca Cola and what was simply a supermarket brand.

You may also ask: what does graphic representation mean? This was clarified in the case of Seickmann, which provided an exhaustive list of what the term means. In this case, the applicant appealed to the ECJ after being denied a trade mark for a smell in which he had written a chemical formula and described it. The court provided a specific criteria for what should be allowed to be a trade mark; the trade mark had to be:

- Clear.

- Precise.

- Durable.

- Self-contained.

- Accessible.

- Objective.

The problem with a smell is that it is not clear, durable or objective; a smell is completely subjective.

So! There are three main steps when registering a trade mark which are:

- S.1 - can your trade mark be graphically represented and is it distinguishable?

- S.3 - the absolute grounds for refusal of an application based on public policy issues.

- S.5 - the relative grounds for refusal - the purpose of this section is to avoid confusion.

All sections refer to the Trade Marks Act 1994.

By Charlotte Newlyn, Charlotte is a university student on work experience at lawdit

About the Author

Lawdit Solicitors offer services and advice for litigation, commercial contracts, Intellectual Property and IT legal agreements. We are experts in commercial law with a heavy emphasis on Intellectual Property, Internet and e-commerce law. Lawdit is a member of the International Trademark Association, the Solicitors' Association of Higher Court Advocates and we are the appointed Solicitors to the largest webdesign association in the world, the United Kingdom Website Designers Association.

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Article Published/Sorted/Amended on Scopulus 2013-03-11 12:52:07 in Legal Articles

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