A trademark is one part of intellectual property. This trademark law, important to business whether in cyberspace or in real world. A trademark consists:
1. Symbol, Design, particularly word or 2. Combination of these used to denote a particular ware (i.e. a good or Service) 3. Graphically
Trademarks serve to distinguish one’s goods or services in the marketplaces, allowing consumers to identify them as being from a specific company. They also can used to identify a good or service as being of a specific quality, since trademarks carry a certain goodwill or reputation built up the company over time. It’s makes customer easy to identify and relate a product with a particular trader.
There are three groups of trademarks which are: a. Ordinary trademarks b. Certification marks c. Distinguishing guise. Ordinary trademarks are words or symbol marks associated with a good or service and held by individuals or organizations (Coco-Cola is perhaps the best known. Certification marks are names or symbols used by organizations to identify quality in a good or service. For examples, the Canadian Standards Association uses the CSA mark to identify a good that satisfies its safety levels. Distinguishing guise identifies ac ware by its physical representation, such as its packaging or physical shape (Coco-Cola’s ribbed glass bottle with the curvy shape is a classic example).
Trademarks differ from copyright, however, in trademarks there are two application legal regimes depending which is registered trademarks and unregistered trademarks. 1. Registered trademarks and benefits.
Its complies with the federal Trade-Marks Act registration requirements and is inscribed in the trademark’s register. Its lasts for 15 years and is renewable. Registration costs several hundred dollars and renewal required another fee according to Canada trades law. Ones registered, the trademarks holder has the exclusive rights to use the trademark in the country of registration; no one else may use the trademark without the holder’s permission. The holder may license or assign (transfer) it to others, and assignments must be registered with the Trade- Marks Office. Trademarks are protected in order to avoid public confusion. Marks that cause confusion because they look or sound like other marks that represent similar goods or services can’t be registered. Finally, certain parts of a mark may be disclaimed, i.e. they may from part of one’s mark but aren’t protected. For example, “Superstar Internet Provider Service” would likely have to disclaim “Internet Provider Service” since it represents the nature of the service. If after much use the entire combination of words becomes sufficiently distinctive in representing one’s goods or services then registration may be possible. If there is any infringement of a registered trademark, the owner may take civil action under the provisions of the Trademarks Act to obtain relief such as injunctions and damages against the person who infringes or lodge a report to the Enforcement Department of the Ministry of Domestic Trade and Consumer Affairs for actions under Akta Perihal Dagangan 1972. The certificate of registration issued by the office of Registrar of Trademarks is a conclusive proof of ownership. However, trademark registration is not mandatory like registration of companies or business. Even without registration, legal protection can still be obtained through “rules of Common Law and Equity” based on usage and reputation. An action of passing off can be taken against any act of infringement. However, procedures to get this protection are rather difficult and time consuming compared with protection through registration.
ROLE OF TRADEMARKS
1. Origin of goods 2. Distinguish product 3. Facilities and assist customers in making choices 4. Guarantee quality 5. Advertise and promote products 6. Economic value –capable of licensing or franchise
THE LAWS IN MALYSIA
1. Trademarks Act 1976, enforced on 1 September 1983 Trademarks (Amendments) Act 1994 Trademarks (Amendments) Act 2000 2. Trademark Regulations 1997 (Amended in 2001)
History of Enforcement trademarks in Malaysia
On 27 October 1990, the Officer of Register of trademarks and patents was placed under the jurisdiction of the Ministry of Domestic Trade and Consumer Affairs. The Intellectual Property Department (now renamed Intellectual Property Commission) was established in 1991 to ensure not only protection of trademarks and patents but also copyrights and industrial designs.
McDonald vs McCurry
McCurry' to pay damages over nameSeptember 08, 2006
The High Court of Malaysian has ordered an Indian eatery called McCurry Restaurant to pay damages to US fast food giant McDonald's for imitating the chain restaurant's name and signature colours.High Court judge Siti Mariah Ahmad yesterday ruled McDonald's had the exclusive right to the prefix "Mc'', and said the McCurry Restaurant, which has similar red and gold signage, had tried to capitalise on the global company's reputation."The act of the defendant was a deliberate attempt to get an unfair advantage to the detriment of the plaintiff,'' she was quoted as saying by the Bernama news agency in ruling on the suit by the McDonald's Corporation against McCurry."The plaintiff had suffered damage to their goodwill and reputation and an erosion to the singularity that they had enjoyed vis a vis the Mc mark, either when used on its own or in conjunction with an item of food'' she said.The sum of the damages award is to be assessed by authorities, Bernama said.The judge said McCurry could cause confusion amongst Malaysians with its red and gold logo, which features a chicken giving a thumbs up sign, and ordered the curry restaurant to drop the "Mc'' from its name, Bernama reported.McDonald's in its suit had said the "Mc'' prefix was a trademark used on all its goods and services and was globally recognised.But the Kuala Lumpur-based McCurry, formerly known as Restoran Penang Curry House, argued that the prefix "Mc'' was not exclusive to McDonald's and pointed to its use in surnames, including Scottish ones.It also said it served an array of popular Malaysian dishes which were totally different from the typical burger and fries fare at McDonald's.McCurry, which has insisted its name is an abbreviation of local popular dish "Malaysian Chicken Curry'', said it would appeal the ruling.There are 174 McDonald's restaurants in Malaysia, and the company is expanding at about 15-20 restaurants annually, according to the McDonald's Malaysia website. Source: http://www.news.com.au/couriermail/story/0,,20374788-462,00.html?from=rss