Intellectual property is abbreviated as IP, is a legal terminology that denotes creation that has been conceived by mind. Examples of IP include literature, invention and innovation, music, designs, artistic work, words, symbols and phrases. In the intellectual property law, individuals who own intellectual right are allowed to have certain special rights. There are different forms of intellectual property rights also abbreviated as IPR. These rights include trademark, patent, copy rights, and industrial rights; trade dress, and in some countries or jurisdictions trade secrets are also recognised under IPR. Since the IP law cover a wider area of rights, this paper looks at one of the intellectual property rights, which are the rights that protect trademarks.
Trademark refers to brand names and service marks, which are vital IP on which the public uses to identify and relate a product to its source and the standards of quality the goods and services represents. Trademarks are phrases, words, sounds, design and symbols. They give a representation to goods or services offered by an individual or company. It is public knowledge that products and services offered are got from a single source and meets the standards that the trademark has represented over the years. The mark helps the owner to gain good will from the people as a result of how the goods or services have been performing in the public. The goodwill is considered strength of the owner's business.
Trademark rights in the business environment arises in one of the following ways; either by registering by a countries patent and trademark’s office with the intention of using the mark on a given product or in relation to a service or by having a mark in commerce or in relation to a service.
Under the federal law, a request for registering a mark may be filed on grounds of actual use of the mark on a product or in relation to a service or with an intention of using the mark for commerce. Requesting for registration under the federal law has various advantages. These advantages include conferment of benefits of nationwide constructive, prevents the sue of the same trademark by any other person, and also protects the mark from being used by other regions that are not within the laws jurisdiction.
For cases where companies, organizations or people use a trademark without following the legal way of filling for federal registration can acquire exclusive rights to the mark in the market in which the trade mark is used. The market in which such trademarks are used can be small in size for instance a town or a bigger area for example a country like Kenya or the United States. Wider areas can also be granted rights to the trademark if the prior user of the mark can prove that their plans to grow before the junior entrant came to the market.
When applying for federal registration of a mark, it must be ensure through the government attorney that the mark in question will not cause any confusion or mistakes in the market in which the trade mark will be used. The inspector also determines that the trademark is not characteristically inept of executing the proof of identity function of a trademark. This is because it is a symbol of a give product or service in which the trademark represents.
However, there is a room for change as a federal registration of marks is valid for only ten years, after which it can be renewed or dropped and replaced by another mark. On the other hand, failure to use the trademark can make the mark fade in the market and lose meaning. Such actions cause the mark to lose its importance as a symbol of a single source and the representation of quality.
A federally registered mark can be identified by the symbols used on them. In cases where a trademark has not been registered the symbol TM is used to inform the public of the status of the trademark, although this is usually optional. The symbol can also be used as a means of picking the unregistered trademarks. Since service marks and trademarks can be licensed, there are commonly used in the franchising industry. The public at one point or another comes to learn about standard of quality offered by a given business, organization or company. However, the quality is usually required to be the same for mark owners who have different facility that offer the same product or service.
In conclusion, it is vital to recognize that the intellectual property rights such as trademarks, patent and copyrights contains the basis in which the fundamental intellectual property can be safeguarded by the law. It is therefore important for any legal representative to have high level of skills when drafting such a document and following all the necessary requirements when obtaining such protections. Through these rights and the availability of the documents, innovators, artists, writers among other are assured that their IP will sufficiently protected.
