Trade Mark Infringement or Copying
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Trademark infringement
How does trademark infringement happen? Copying a trademark or brand is easier to prove when the trademark is registered. Trade mark infringement can happen in a number of ways. And trademark infringement does occur. There are several cases of trademark infringement that have appeared before the courts.
Courts defend infringement of registered trademarks
Registered trade marks hold a strong position on account of the nature of trademark registration. Registered trade marks hold title, that the courts tend to uphold. Because a person registers a trade mark, the law provides an exclusive right to that person to use the registered trade mark for certain goods and services. Registering a brand helps to stop copying brands by competitors. This brings into question as to how such a right might come to be infringed. Indeed, several key issues can arise in trademark infringement proceedings. Some of the issues in trademark infringement court cases include: -
• how closely do the trade marks resemble each other?
• whose trade mark is registered, and therefore, protected?
• how similar are the goods and services being traded?
• is there a likelihood of confusion of the brands with consumers?
• would consumers accociate a sign with a registered trademark owner?
The Court judgments tend to defend the rights held by holders of registered trade marks. However, certain elements involved in trade marks are not capable of being protected, and therefore may not be infringed. Examples of situations where an allegation of trade mark infringement may be difficult to sustain include trademarks that may be questionable as to certain characteristics, for example: -
• is the trade mark devoid of distinctive character?
• is the trade mark merely a description of the goods or services?
• are there any limitations imposed in the registration?
• are there any earlier rights involved?.
• Is the registered trademark capable of being revoked or invalidated?
• There is no trademark infringement in the use of a trade mark where it is necessary to indicate the intended purpose of a product or service, in particular, as accessories or spare parts.
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Trademark Opposition
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Trademark Opposition
When an application to register a trade mark has been accepted, the trade mark is examined, and once approved for registration it is then advertised for a period of three months. The purpose of the advertisement of the details of the trademark registration is to allow other parties to oppose the registration. Trade mark opposition can be filed by interested parties to seek to prevent the registration of a trade mark, during this three month period.
Once a trade mark opposition has been filed, the application for registration is put through an additional process that may or may not prevent the registration from occuring.
So it may be very worthwhile looking at using trademark opposition or trademark monitoring as a suitable additional tool for protection. Opposing the registration of a trade mark can involve a wide range of matters, some of which are embodied into the following:
• what are the grounds of the trade mark registration opposition?
• what claims are included in the opposition case?
• what rights are currently held?
• how strong is the case for opposition?
• how strong is the case for defending the opposition to trademark registration?
In certain cases, it is useful to obtain advice when dealing with opposition proceedings, or when faced with a claim of trademark infringement. We can provide you with an opinion concerning such trademark opposition or infringement matters, before you decide on which course of action is most suitable to your case.
Visit our Da Vinci code page to see whether copyright or trademark registration is stronger. To see more about registering trademarks for films, television programmes or cartoon characters, go to the character merchandising page.
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