LAW Essay Example | Topics and Well Written Essays - 1750 words

LAW - Essay Example Trademarks could be any combination of words, names or symbols that are used in commerce as brand names, tag lines, slogans, non-functional and distinctive packaging and labeling designs, etc. to indicate the source of a product or service. Only non-functional elements are protected by law as trademark rights Functional aspects of a product or service are covered under patent law with a limited term of protection whereas trademarks are not limited in term (except by nonuse) (Trademarks Basics, n.d.). The law that protects registered trademarks and trademarks registration in the UK is the Trademark Acts of 1994 as amended (Intellectual, n.d). In addition, the European Union has implemented regulations to harmonize the laws of trademarks among its member states, including the United Kingdom (The trademarks, n.d). If a trademark is not registered, the original creator does not necessarily lose all rights to his works. Under UK common law, it is possible to take civil action. To make a s uccessful claim, the owner must prove that the mark belongs to him, that the alleged owner has built a reputation using this mark and that he has suffered some damage because of the unauthorized use (Ibid). Trade marks can also be protected in the United Kingdom via common law rights established under what is called "passing off." The "passing off rights are established by the use of a brand and the establishment of goodwill (Registering, 2008). However, it is preferable to register a mark, as opposed to relying on common law passing off rights, as you have to prove that you have established goodwill to succeed in a passing off action. Also, passing off rights can be limited to a local area, whereas a UK Trade Mark registration automatically covers the whole of the UK (Ibid). The doctrine of Common law â€Å"passing off† works in a way that the owner of a mark can acquire some rights without registering his mark. A trader who uses a mark acquires â€Å"goodwill† in ass ociation with that mark. â€Å"Goodwill† has been defined as the quality, which causes a customer to go to one particular trader rather than any other (Ibid). The owner of a trademark can sue another trader who uses that mark in such a way as to confuse the public into believing that his goods are those of the owner of the mark. This is a â€Å"passing-off† action (The Basics, n.d.). At common law, a trademark is obtained by adopting and using the trademark, in association with goods or services offered for commerce ( Larson, 2003).. The mark must be placed in actual use before protection is available. Once the mark becomes associated in the mind of the public with the particular good or service, the common law trademark is established. Ordinarily, the geographic scope of the common law trademark is limited to the area of use. The three fundamental elements to passing off are reputation, misrepresentation, and damage to goodwill, which are sometimes known as the classi cal trinity, as restated by the English House of Lords in the case of Reckitt & Colman Ltd v Borden Inc [1990] 1 RPC1 341 1 (the Jif Lemon case) (Passing n.d). Passing off does not recognize them as property in its own right, but prevents one person from misrepresenting his or her goods or services as being the goods and services of another person or the plaintiff in infringement proceedings. The law of passing off is designed to prevent misrepresentation to the public