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Protecting Your IP

 

Intellectual protection is a minefield of grey zones that make any real sense of protection quite difficult in a number of areas.

However, there are certain areas where IP protection is pivotal to your success. This includes:

  • Software - which are currently under attack from unethical individuals in developing nations with less infrastructure to govern IP
  • Creative Works - a traditional zone of IP covered largely by copyright law
  • Trademarks - brand names, product names, company names and the like.

 

Trademarks

A trademark [™], also referred to as ' trade mark' or 'mark' is a distinctive indicator used by a legal entity to uniquely identify its products and/or services.

It may consist of a name, word, phrase, logo, symbol, design, image, or a combination of these elements.

A trademark used in relation to services rather than products, is often referred to as a 'service mark', particularly in the United States.

The term trademark may also informally refer to any distinguishing attribute by readily identifies an individual, such as the well known characteristics of celebrities.

 

The Function of a Trademark

A trademark is used to uniquely identify the commercial source or origin of products or services, serving as a 'badge of origin'. This is known as trademark use.

Registered Trademark

Certain exclusive rights attach to a registered mark, and to prevent unauthorized use of that trademark, enforceable in court by way of an action for trademark infringement.

Unregistered Trademark

Registration of a trademark is not required to pursue action. The owner of a common law trademark may also file suit, however an unregistered mark may be protectable only within the geographical area within which it has been used or in geographical areas into which it may be reasonably expected to expand. Unregistered trademark rights may be enforced pursuant to the common law tort of 'passing off'.

Trademark rights generally arise out of the use and/or registration of a mark in connection only with a specific type or range of products or services.

Although it may sometimes be possible to take legal action to prevent the use of a mark in relation to products or services outside this range [e.g. for passing off], this does not mean that trademark law prevents the use of that mark by the general public.

A common word, phrase, or other sign can only be removed from the public domain to the extent that a trademark owner is able to maintain exclusive rights over that sign in relation to certain products or services, assuming there are no other trademark objections.

 

Indications of Trademark

There are two symbols used pertaining to trademarks:

- used when trademark rights are claimed in relation to an mark that is unregistered with the government trademarks office of a particular country or jurisdiction

® - used to indicate that the mark has been so registered.

Either symbol is typically placed in the top left- or right-hand corner of a mark.

Note: Although it is common usage to use such marks, it is not mandatory to use either symbol. In some jurisdictions, use of the ® symbol is highly advisable, assisting in enforcemand and in claiming damages from an infringer.

For more on Trademarks

 

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