The TM Sign
The trademark is a sign which allows the consumer to distinguish among more identical or similar products. It is what helps him recognize a certain product, by associating the sign with it.
A complete definition would state that the trademark is a sign associated to both products and services, supposed to permit the consumer to draw a distinction among identical products on one hand, and not to induce to his mind that similar products have the same origin, on the other hand.
If a trademark doesn’t meet these features, a consumer could confuse the identical/similar products which have different origins, as well as he could not confuse them, but assign them to the same origin. We are talking about a risk of confusion, in the first case, and one of association in the second case.
If we admit the idea that a trademark is actually a feature that a man must recognize by using the same senses which he investigates the surrounding reality with, it means that the following signs my be used as trademarks:
- Signs that can be perceived by using your sight. This category includes figurative trademarks (drawings, graphics), verbal trademarks (the written representation of verbal expressions) and three-dimensional trademarks (wrappings, shapes);
- Signs that can be perceived through hearing (sonorous trademarks). Here we talk about all categories of sounds, from music to noise, from nature existing sounds to sounds created by man, and the phonetic form of verbal expressions. To illustrate here, Harley Davidson Company have registered the sound of their motorcycle engine as a legal trademark. Also, the well-known lion raw of Metro-Goldwyn-Mayer is a legal trademark.
- The signs can be perceived by sense of touch, namely three-dimensional trademarks. As an example, there are fashion companies that have registered the shape of their perfume bottle.
- Those that can be perceived using smell. They are called olfactory trademarks and one example is the rose-smelling paper;
- There are also signs perceivable by tasting. They are called organoleptical trademarks.
- It is easy to notice that some of them can be perceived by the simultaneous usage of more senses: to a normal human being a trademark is both sonorous and graphic, a three-dimensional trademark is visually perceivable (we recognize the shape of a product without touching it) and also tactile (blind people can recognize the objects by touching them).
Apparently, the possibility of choosing a trademark is endless, but as the patent act counselor V. Evans (“How to Obtain a Patent”) showed in the 1930’s, choosing one is not easy business. He mentions some of the conditions a successful trademark should meet:
- It should be easy to pronounce;
- It should be easy to remember;
- It should be easy to represent;
- It should be attractive as aspect and pronunciation;
- It should suggest to the buyer the quality of the things he is about to buy;
- It should differ from all the similar products (to avoid confusion);
- It should meet the legal conditions, so as to be registered and protected.
- The symbol for the registered mark is : ®
- The symbol for an unregistered, but used mark is : ™
The word ‘trademark’ is often replaced by other modern terms, like ‘brand’, ‘logo’, ‘label’.
Trademark Works
Level 19, Two IFC
8 Finance Street
Central, Hong Kong
(852) 2251 8140