TRADEMARKS

Definition of a mark
A mark is any visible sign that distinguishes the products
(trademark) or services (service mark) of an enterprise, which includes
the container of the products or the packaging.
It can be a word, a symbol, or a combination of both.
Types/Spectrum of Distinctiveness
The relationship between a mark and its product can be defined using
the types/spectrum of distinctiveness.
1. Fanciful---the mark is a made-up mark and has zero relation to the
product.
 ex. Kodak (cameras), Xerox (photocopying services)
2. Arbitrary---the word is a common, generic one but like fanciful, it
has zero relation to the product.
 ex. Apple (gadgets), Bench (a clothing store)
3. Suggestive---the word is still generic, but this time, it has a relation
to the product since it hints it, but does not directly describe it.
 ex. Fresh (for candies), Manhattan (a clothing store)
4. Descriptive---the word directly describes a product, and this
cannot be registered as a trademark, unless it obtains a second
meaning for the product.
 ex. Durable (for tries), Delicious (a brand of food)
5. Generic---this is the product itself, and it cannot be registered
unless it obtains a second meaning for the product.
 ex. Burger (for burgers), Resto (for restaurants)
Kinds of Non-Traditional Marks
Mostly, the marks discussed are the marks than can be seen. But there
are also kinds of marks that go away with the usual logos. These are:
1. Sound Marks (ex. the McDo Sound)
2. Smell Marks
3. Touch Marks
4. Movement Marks (ex. the hands in Nokia when the phone starts)
5. Position Marks (ex. the stripes in Adidas)
6. 3-Dimensional Marks (ex. Coke bottle, fast-food mascots)
7. Hologram Marks
 8. Colour Marks
Functions of a Trademark
1. Indicators of Origin (like Absolut Vodka from Sweden)
2. Indicators of Quality
3. Advertising Function
Importance of Trademarks
1. Grants exclusivity
2. Gains reputation
3. Generates goodwill
What are the marks that cannot be registered?
These marks cannot be registered as trademarks for various reasons:
1. Immoral, deceptive, scandalous, and disparage marks.
2. Flags, coat of arms, other emblems.
3. Misleading marks (such as Bolpen for pencils)
4. Generic Indications
5. Customary of usual in trade
6. Descriptive indications
7. Descriptive as to origin
8. Colour marks
9. 3D Marks
10. Names, portraits, and signatures
11. Identical/confusingly similar marks.
Geographical Indications (GIs)
---It identifies a good as originating in territory, region or locality,
where given quality, reputation or other characteristic of the good is
essentially attributable to its geographical origin.
The main difference of GIs to marks descriptive to origin is that GIs do
not directly describe the product. Instead a second meaning is acquired
as to that product is well-associated, in its quality and reputation, to a
particular place or region.