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Trade MarksChapter

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Bra DinerSencer CokunerGken Cokuner

mer BakoluErcan Yiit ArasAhmet Pehlivan

2009502029

2009502085

2009502084


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What is the Trade Marks ?

A trademark is a recognizable sign,design

or expression which identifies products or

services of a particular source from those

of others.


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What is the aim of Trade Marks ?

The aim of a trade mark is to encourage

purchasers to buy your companys product or

your companys service by using the mark

when they place an order.

It follows that trade marks should be

easy to remember and sufficiently

different from marks used by competitorsto avoid confusion.


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What is the Registrable Trade Marks ?

There are two basic requirements.

The first is that the mark must be distinctive, that is, it

must be capable of indicating goods or services

originating from a particular source and of distinguishing

those products from the products of competitors.

The second requirement is that the mark does notindicate the type, quality, purpose or geographical origin

of the goods or otherwise describe the goods or service,

and it is not a word which the trade is likely to use in

normal business


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For example:

If the name of the goods is included in themark, then others cannot be stopped from

using that name, thus Coca-Cola and

Pepsi-Cola are both registered for coladrinks.


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Types of Trade Marks:

Invented wordsWords used out of context

Symbols and shapes

Other permitted types of markChoices to avoid


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Invented words

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An invented word is a word which has

been made up specially for use as a trade

mark, a word which has no meaning in the

English language. Preferably, the word is

short and pronounceable. Good examplesare Xerox for photocopiers, Kodak for

cameras and Dulux for paints.


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Words used out of context

These are normal English words but used

in a different way. Good examples are Apple

for computers and Jaguar for cars.

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Symbols and shapes

A trade mark can be in the form of ashape or a picture, either alone or combined

with a word or words. While the legal term is

device marks, they are commonly referredto

as logos, although strictly that name applies

only to a combination of words and

symbols.

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Other permitted types of markA trade mark can consist of a single colour, but

combinations of colours are more likely to be distinctive.

However, registration of a particular shade of green byBritish Petroleum for the livery of petrol service stationswas the basis of a successful infringement action inNorthern Ireland. It is advisable to specify colours byPantone numbers or the like.

A mark can be a smell. The essential graphicalrepresentation consists of an appropriate word, such asthe smell of fresh cut grass in an application in which thegoods were tennis balls.

Sound can also be registered, for example, by using

musical notation

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Choices to avoidThe word similar can extend quite a long way.

If a mark is registered for wine, the same orsimilar mark cannot be registered for whisky by adifferent owner, because consumers wouldassume there was only one trade origin of the

two products.Marks will not be registered if they include

national flags or coats of arms in a misleadingway, or if the mark is contrary to UK or European

Community law.

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How to register a trade marks ?

Registration of trade marks is handled by theTrade Marks Registry, a part of the UK PatentOffice. The application must be filed by someonewho is already trading or who intends to trade in

the goods or supply of the services in question.Usually trade marks are associated with themanufacturer of the goods, but marks canindicate a different type of connection, such as a

retailer selling own brand products, or a licenseeof a trade mark owner

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Timeline of Trademark procedure in UK

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Infringement of a registered trade mark

After registration the owner has the legal

right to stop anyone using the registered mark

in relation to the goods or services specified in

the registration. The owner can also stop the

use of the registered mark on similar goods or

services, or the use of a similar mark on the

registered or similar goods or services,provided the public is likely to be confused.

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For example

The word Viagra is registered for

pharmaceutical products. The owner brought

a trade mark infringement action against a

company that intended to market a drink

under the name Viagrene and to advertisethe drink as stimulating the libido in men and

women. This was use of a similar mark on

similar goods, confusion was likely, and thetrade mark owner won.

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Comparative advertising

Companies often wish to use the registered

trade marks of other companies in

advertisements where two products are

compared. This is permissible provided such

use is honest.

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For example

The companies Vodafone and Orange bothrun mobile phone networks. Orange

advertised that On average, Orange users

save 20 every month, by comparison with

Vodafones equivalent tariff. Vodafone

objected, but the court held that the advert

was not misleading.

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Important

When the registered mark is a word, using

it in quotation marks, in capitals, with a capital

first letter, or with the symbols or or

(RTM) all give emphasis to the special nature

of the word. This type of use should occur in

all written materials, not just inadvertisements or labels, but also in company

reports, even internal ones, and in business

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Be careful!

Sometimes, a trade mark is indicated as orRTMthis should only occur if the mark really is

registered; it is a criminal offence in the UK toclaim that a mark is registered when it is not. Thisapplies in other countries also, and for goodstraded internationally such a marking must be

very closely controlled on a country-by-countrybasis. In these days of wide international trade, acommon practice is to use on the goods in allcountries, provided the mark in question isregistered in the home country.

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Cancellation of registration

If a mark is registered but not used for 5 years,or if it was registered without a genuine intentionto use it, then any person aggrieved (usuallysomeone wanting to use that mark) can apply for

the registration to be cancelled on the grounds ofnon-use. To avoid this, a proprietor must makereal commercial use on a substantial scale within5 years. Token, small scale use will not save the

registration, but use of a trade mark by a licenseecounts as use by the proprietor and will avoidcancellation.

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Trade marks in other countries

In some countries, usually current or former British

Commonwealth countries, the law relating to trade marks is very

similar to that in the UK. For example, using a mark without

registering it builds up legal rights which can be applied to stop the

use of similar marks.In other countries, including many in the EU, only a registration

gives any worthwhile rights. Trade mark laws are national laws, and

a separate registration is required for each country except Belgium,

the Netherlands and Luxembourg which have merged their trade

mark systems.

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Chapter 7 Ownership of intellectual

property rights

and rights of employees

Bra DinerSencer CokunerGken Cokunermer BakoluErcan Yiit Aras

Ahmet Pehlivan

20095020292009502085

2009502084


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What is the ownership?

Three general terms are widely used and

need a few words of explanation.Now we

explain these general terms.We return this

question later.

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Employee

In most cases it is clear whether an

engineer is employed. An employer hascontrol over what an employee does and

when and where the employee works.

Employees receive holiday pay, their employer

pays national insurance and sickness benefits,

and sometimes pension fund contributions.

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Commissioned

Some of the laws relating to ownership of

IPRs refer to work commissioned for money

or moneys worth. A commission is simply an

order or authority to do an act,not necessarilyin writing. Actual payment can be made, or

the work can be carried out in return for other

services or for the supply of goods, whichwould constitute moneys worth.

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For several different types of IPR, the right isowned by a person making the necessary

arrangements for the work to be created. Forengineers, the most important use of the phrase occurswith computer-generated works, in which case thewords only apply since the Copyright, Designs and

Patents Act 1988 came into force on 1 August 1989.In the computer area, the phrase probably means

the company or the person owning the computer onwhich the computer-generated work is created.

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Person making the necessary

arrangements


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Ownership of patents

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Inventor

Applicant

Owner of the patent rights

There are three separate persons or companies


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What is the inventor?

The inventor is the person who has the

creative idea that constitutes the invention

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What is the applicant?

The applicant is the person who files the

patent application, which need not be either

the inventor or the owner

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Intellectual property rights(IPR)Intellectual property(IP) is a legal concept

which refers to creations of the mind forwhich exclusive rights are recognized. Underintellectual property law, owners are grantedcertain exclusive rights to a variety of intangible

assets, such as musical, literary, and artisticworks; discoveries and inventions; and words,phrases, symbols, and designs. Common types ofintellectual property rights include copyright, trademarks, patents , industrial designrights, trade dress, and in somejurisdictions trade secrets.

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Scheme of intellectual propertyrights(IPR)


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Assignment of individual IPRs

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Patents

Registered designs

Design rights

Copyright

Moral Rights

Trademarks


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Patents

A patent grants an inventor exclusive

rights to make, use, sell, and import

an invention for a limited period of time, in

exchange for the public disclosure of theinvention. An invention is a solution to a

specific technological problem, which may be

a product or a process

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Registered designs

A design registration, an application for aregistration or the right to make an applicationcan be assigned. The assignment must beregistered in the Register of Designs if not, the

assignment is not admissible in court as evidenceof ownership. However, there are no restrictionson payment of damages as with patents.

Since registered designs and design rights are

so closely linked, to eliminate any doubt, it isadvisable to include the design right associatedwith the registration in the assignment.

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Design rights

A design right protects the visual design ofobjects that are not purely utilitarian. Anindustrial design consists of the creation of a

shape, configuration or composition ofpattern or color, or combination of patternand color in three dimensional formcontaining aesthetic value. An industrial

design can be a two- or three-dimensionalpattern used to produce a product, industrialcommodity or handicraft.

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Copyright A copyright gives the creator of an original

work exclusive rights to it, usually for a limited

time. Copyright may apply to a wide range of

creative, intellectual, or artistic forms, or

"works".Copyright does not cover ideas andinformation themselves, only the form or

manner in which they are expressed

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Moral Rights

Although the relationship between intellectual

property and human rights is a complex

one, there are moral arguments for

intellectual property. Moral rights can changehands only as a bequest in a Will

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Trademarks

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A trademark is a recognizable sign,designor expression which identifies products or

services of a particular source from those

of others.


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Summary of ownership

If any material protected by copyright, design right,registered design or topography right is created by anemployee as part of his or her normal work, the employerowns the legal rights. For patentable inventions, theemployer owns rights in an invention only if the employees

job is of the type in which inventions are likely to be made.All other inventions belong to the employee.

If a design right or registered design is created under acontract, the company paying for the work automaticallyowns the rights, but not the associated copyright. Paying

for the work does not automatically change the ownershipof copyright or patents, they must be specifically assignedin a written document.

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