The immediate thought that strikes someone who sees an apple diagram that appears to be bitten on one side is Apple Inc; an American multinational electronic company best known of the production of the production of the widely used Ipods, Mac computers and iPhones and Ipad computer tablets. Ideally, most people are able to identify various business organizations just by looking at the symbols and words associated with the company and since business underscore the important role that such business symbol play with regard to brand awareness, businesses strive to build their brand awareness strategies around the symbols that should be associated with the products. A trademark is a set of symbols or words that is used by a business organization to distinguish its products and services from the ones produced by other business organizations (Barrett 227).
The enactment of the trademark law can be traced to the 19th century when the tort law was enacted. The tort law was concerned with the protection of consumers for false representation of products especially in a case where two competing products were involved. The first trademark statute was enacted in 1870 but was later struck down by the Supreme Court arguing while pointing at the copyright and commerce clauses, that the statute overstepped the authority of the congress. This prompted a correction of the statute in which the scope of the law was appropriately reduced. As McKenna contents, the main idea behind the enactment of the Trademark was to promote the production of quality goods and services besides helping consumers reduce their search costs (1844). Through a trademark, a consumer is able to positively and effectively identify the products produced by a give business organization.
Trademarks are deemed to be the property of a business organization (United States Patent and Trademark Office 1). To own a trademark, a company has to design a trademark that appeals to the business with the help of a trademark attorney (United States Patent and Trademark Office 1). It should be noted that it is not a must for a business organization to have a registered trademark even though the registration of a trademark is overly advantageous to a business has it offers the business exclusive rights to the use of the trademark.
It is normal for businesses to ride on the success of other business organizations by producing products that bear similar (or almost similar) trademark of businesses that are well established and command a commendable market size of a product. This is most commonly done in two ways; producing inferior goods bearing the trademarks of a competitor (with an intention of tarnishing the good reputation of the competitor) or producing normal good bearing the competitors trademark (with an intention of selling them to unsuspecting buyers who think for that the goods have been produced by the right producer).
The advent of the web and web arts have been accompanied by a series of challenges to the trademark law. One of the main problems that have risen with regards to the development of the web is cyber squatting. There are instances that one own as trademark but does not own a domain name. This was normally pose a challenge to the trademark law as it is overly prone to abuse. For instance, business might own the trademark JOY™, which is the trademark for business organization that deals with pharmaceuticals. When it comes to a domain name the person might, well, be the owner of the domain name joy.com. However, another unscrupulous business organization might decide to purchase the domain name, for instance joyland.com, for a site that serves as an advertisement spot mostly products that are similar to the products produced by JOY™ or for other business organizations selling JOY™ products. This can be viewed to be a bad-faith domain registration that is aimed at benefiting from the glory of JOY™. As Yu retorts, the problem of cybersquatting was far reaching that even the trademark law could not be used to protect business organizations from cyber squatting (379). On his part, Yu, asserts that even though there was a section in the trademark law that prohibited the use of business identities in a manner that could lead to confusion, cyber squatting proved hard to be curbed using the law (379). Notably, there was no amendment done to the Trademark law to combat cybersquatting. However, a different law, known as the Anticybersquatting Consumer Protection Act, was enacted in 1999 that prohibited the use of domain names in any manner that can lead to confusion (Morley 253).
Far from cybersquatting, there are instances when one decides to register a domain name that has exactly the same name with an existing trademark. The purpose was such an act is not normally for abuse but for holding the owner of the trademark at ransom to buy the already registered domain. Panavision International L.P. v Toeppen is one such court case that involved the registration of domain names for existing trademarks; the case could not be easily solved by the application of the trademark law. The defendant in this case had registered two domain names (Panavision.com and panaflex. com) (Ross 37). Noting that the PANAVISION™ and PANAFLEX™ were trademarks belonging to Panavision International, this case presented a classic case of cybersquatting (Ross 37).
Reportedly, Microsoft is yet another company that has suffered for such an abusive act. There is a student who registered a domain main for Microsoft’s windows95 (windows95.com) and thereafter asking Microsoft to purchase the domain name. In a similar manner, there is a reported who registered a domain name (nyt.com) only to surrender it to New York Times after The New York Times paid him an undisclosed amount of money. In light of the complexities that such developments led to, there are several policies, for instance the Uniform Domain Name Dispute Resolution Policy that have since come into existence to help in solving such problems (Quinto 3). Ideally, such policies serve to compliments the Trademark law.
Concisely, the Trademark law is a law that strives to protect registered trademarks belonging to various business organizations. A trademark can be defined as set of symbols or words (or a combination of both) that is distinct to a given business organization. In Competitive business environment, businesses always want to outdo each other leading to some businesses indulging in unhealthy businesses practices that might include confusing the consumer. As seen above, the trademark law strives to protect the consumer from such business practices. Furthermore, the advent of the web was accompanied by various developments that were challenging to the Trademark law. One such problem is cybersquatting which involves the formulation of domain names that are confusing to the consumer for commercial gain. The registration of domains with names similar to trademark names for existing businesses is yet another challenging trademark problem. However, such problems have since been curbed with formulation of additional policies and legislation.
Works Cited
Barrett, Margreth. Intellectual Property. New York: Aspen Publishers, 2008. Print.
McKenna, Mark P. . "The Normative Foundations of Trademark Law." The Normative Foundations of Trademark Law 0 (2007): 1-70. Print.
Morley, Deborah. Understanding Computers in a Changing Society. Boston, MA: Course Technology, Cengage Learning, 2011. Print.
Quinto, David W. Law of Internet Disputes. New York: Aspen Law & Business, 2001. Continually updated resource.
Ross, Terence P. Intellectual Property Law: Damages and Remedies. New York, N.Y: Law Journal Press, 2000. Print.
"Trademarks." United States Patent and Trademark Office. N.p., n.d. Web. 27 Feb. 2013.
Yu, Peter K. Trademark and Unfair Competition. Westport, Conn.: Praeger, 2007. Print.
