Trademark law

Trademark law

Introduction

Trademark law governs the use of a device (including a word, phrase, symbol, product shape, or logo) by a manufacturer or merchant to identify its goods and to distinguish those goods from those made or sold by another. Trademark law also governs service marks, which are used on services rather than goods. In the United States, certain common law trademark rights stem merely from the use of a mark. However, to obtain the greatest protection for a mark, it is usually advisable to register the mark with the federal government, or with a state government. A mark which is registered with federal government is marked with the ® symbol. Unregistered trademarks are marked with a "tm", while unregistered service marks are marked with a "sm".

Trademark status may be granted to distinctive and unique packaging, color combinations, building designs, product styles, and overall presentations. It is also possible to receive trademark status for identification, which is not on its face distinct or unique but which has developed a secondary meaning over time that identifies it with the product or seller. The owner of a trademark has exclusive rights to use it on the product it was intended to identify, and often on related products. Service marks receive the same legal protection as trademarks but are meant to distinguish services rather than products.

Discussion

What law governs domain names disputes? There is no separate law governing domain names. This is probably because there isn't yet any global consensus on whether domain names are part of other intellectual property rights and therefore protected by specified law. Judges as well as legal practitioners therefore, should provide an in-depth understanding to the nature of the domain name in question first. Besides other advantages, this analysis would normally direct us to the most appropriate legal instrument to be applied to the disputed domain name(Grossman 1988b).

In this analysis, one key factor question has to be answered. Looking at the legal nature of a domain name, what in essence is a domain name? From a pure technical point of view, a domain name is an Internet address identifying a computer site connected to the Internet in the same way that a telephone number uniquely identifies a telephone line connected to the global telephone network. Therefore a domain name is no more than data, a reference point in a computer database.

No two organisations can have the same domain name and no two people can have the same telephone number. However, from a legal point of view, it is not clear yet what a domain name is? Broadly speaking, the rights over a domain name arise from either the registration agreement contractual relation with the registrar or from the property right interest over the name itself. Without going in depth, it is necessary to point out that the legal nature of domain names registration agreement should be analysed first in order to give a clear comprehensive answer to the rest of the query, identifying the status would ...