A trademark is a mark representing the brand name, logo, label, symbol, slogan, design or phrase of a company or organization. Trademark is the valuable asset of each company as it is linked to their products and consumers can decide to buy products just based on the trademark. Therefore, trademark must be distinctive for each company so that consumers can distinguish a specific product of a company from others.
The idea of trademark was started very soon in the 1800s as established companies realized its importance and they want to protect their business from competitors, who can imitate their products and ruin the reputation. An example of this is the infringement case of Red Bull against Bullfighter in UAE in 2003. Red Bull won the lawsuit against its competitor in UAE, Bullfighter as the company was found guilty of trademark infringement. Bullfighter was sued to be using a similar name and packaging as Red Bull, these could convince their customers to believe that the products were endorsed by Red Bull. Some small companied tried to take advantage of other established trademark to make their products more well-known and increase sales. However, this is a short time developmental strategy and it could lead to serious consequences, they could be sued in court and fined a lot of money. The trademark infringement cases still occur very often these days as small companies still expect they can take use of the reputation of bigger ones without their notice or they can expect they could win in the trademark infringement lawsuit.
According to the United States Patent and Trademark Office (USPTO), registration of trademark is not compulsory as any company or organization can establish a trademark and use it in commerce. However, when there is any conflict, for example, another company use the trademark to ruin your reputation, you will not have a legal evidence of ownership of the mark and it will take more time and fee to prove that your company and products have been established with the mark.
In regards to the trademark symbols being used like “TM” (trademark), “SM” (service mark) or “®”, they have different uses. The “TM” and “SM” can be used to claim the ownership of a product or service even without registration to the USPTO. The registration symbol “®” can only be used after the trademark is registered successfully to the USPTO.
Besides, trademark owner also have some other important advantages. Most importantly, it will help the owner protect their mark from being used by competitors, even when that is a similar mark to the mark registered. USPTO also states that if there is any party trying to use the trademark, the owner can take legal actions against that party in federal court and claim charges depending on the situation.
Once a company has the trademark ownership, it will have exclusive right to use it nationwide and for all the products that are listed in the registration. In addition, the mark will be listed in the USPTO’s online databases and if there is any similar mark to the registered mark for related products, the new registration will be refused. Mark Trademan also said in the Trademark Information Network’s video podcast that trademark can last forever as long as it is being used, products are still being manufactured and sold on the market.
On the other hand, trademark registration also has some disadvantages for the owner. In the article “Emulation: Right or Wrong?” published by Sam Pettus in 2000, he mentioned some disadvantages of trademark protection. Firstly, the owner will need to show proof of use at regular intervals, the first submission is between 5-6 years after registration, the second is 5 years later and every 10 years thereafter. If the owner don’t file these documents on time, it could lead to the loss of trademark. The trademark is also described as the weakest form of intellectual property protection as it protects just marketing concepts and not always product itself. Therefore, trademark should go with other intellectual property rights like patent. Another disadvantage for trademark owners is that they will have to pay fee for registration and renewal. The fee depends on the number of classes of products that are covered in the application and some more additional fees.