Crimes and Justice series 6: Infringement of a Trademark
A distinctive symbol or group of words attached to an idea or product serving as signature is known as a Trademark.
A trademark is one of the intellectual property devices, word or combination of words, or symbol that indicates the source or ownership of a product or service.
It can be a name, such as Adidas, or a symbol, such as McDonald’s golden arches, or it can be a combination of the two, such as when the NIKE name is written with the “swoosh” symbol beneath it. In very limited cases, a shape or even a distinctive color can become a trademark.
Trademark serves as originality stamp of the product to influence people about their choice in selection of products. It is also to inform them about the originality of the product and guarantee their choice.
The owner of a trademark may challenge any use of the mark as it infringes upon the owner’s rights.
The presence of trademark protection for the name or logo of a company or product is often indicated by the small symbol of an “®” in a circle placed near the trademark. The R means that the mark is a registered trademark and is a warning that the law prevents illegitimate use of it.
Meanwhile, Marks bearing the TM symbol are not registered, but the presence of the symbol shows an intent to register.
Relatively, Trademarks have been categorized in order to determine the legal protection they bear.
Amongst these categories are the Generic which is a common name for products that cannot be protected such as shoes, balls, saloons etc.
Descriptive is usage of features of product as trademark except it has secondary meaning else it’s the same as Generic.
Suggestive is when one of the function of the product is being used and except where uniqueness is proven it’ll not be protected.
Finally, Arbitrary or Fanciful is usage of words with personified meanings or use of name that has no dictionary meaning i.e Rolex, D&G and this is the most strongest and reliable amongst all.
Uniqueness is a major consideration to the potential trademark owner, regardless of whether the mark is generic, descriptive, suggestive, and arbitrary or fanciful.
In most situations, one will not be allowed to use a trademark that another entity already uses. Before an entity incorporates under a certain name, or attempts to sell a service or product bearing a particular name, it should conduct a search or hire an attorney to investigate prior or existing use of such name.
Any company that fails to conduct this kind of a search or blatantly ignore existing use of a trademark are likely to face a lawsuit by any existing owner of the mark.
It is worthy of note that such a lawsuit may lead to a court order stopping any infringing use and an award of damages to the holder of the mark.
The six most common causes of action in infringement lawsuits charge include:
1. A defendant has infringed on a plaintiff’s registered trademark; undermined a plaintiff’s unregistered mark in a manner that affects commerce;
2. Violated common-law trademark infringement standards
3. Unfair Competition principles;
4. Violated state deceptive trade practice laws
5. Diluted a plaintiff’s trademark
6. Misappropriated a plaintiff’s mark.
Trade Marks Act,chapter 436, Laws of Federation of Nigeria 1990
Dinwoodie, Graeme B., and Mark D. Janis. 2004. Trademarks and Unfair Competition: Law & Policy. New York: Aspen.
These are just the author’s opinion on the written article and will not be liable for any inconsistency therewith.
SAHEED, Afeez Ayinde
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