Protect and Ensure Trademark Rights - Essay Example

Trademark “A recognizable mark or a symbol logo which marks out and distinguishes the goods or services of a particular source, manufacturer or trader from that of others is called as Trademark” (Ladas 974). Trademarks are used for various products and services ranging from A to Z. In order to get a trademark for a brand, organization, franchise, it is necessary to get the trademark rights from the government or concerned authorities under the defined laws. This essay is aimed to define and explain the provisions of trademark laws. The essay will also highlight the challenges that are imposed by the Web and Web applications for trademark. Furthermore, it will discuss that how laws and provisions have played their part in addressing these issues. Every country has set its own trademark laws according to the standards of the country and their chain of command. These laws are made to ensure proper protection to the trademark rights nationally and internationally. A trademark plays a key role for trade purpose as customers identify any product or service through its trademark and thus, recognize the source. This has a key part for influencing trade nationally and internationally (Dinwoodie and Janis). To protect and ensure trademark rights and to avoid trademark infringement, trademark laws are made. Every country has slightly different trademark laws. However, the trademark laws practiced in United States and Canada falls under the Common law (USPTO.gov). The Canadian trademark law is designed to ensure protection under the Trademarks Act, which is also known as Common Law. There are a few provisions / postulates of the Canadian trademark law which help brands, organizations, individuals or enterprises to understand the law briefly. According to the Canadian law, getting registered trademark under the Trademark Act can either protect a mark, or it can also be protected under the common laws action (Dinwoodie and Janis). According to the Canadian law, trademark is an intangible property. A few of the postulates are mentioned below; The Act defines the scope of trademark as a certification mark or a distinguishing guise (Certification marks helps in classifying the nature of a good or service, a distinguishing guise can be registered only if it is not likely unreasonably to limit the development of any art of industry. The Act does not protect utilitarian features of a distinguishing guise. “The trademark law is not intended to prevent the competitive use of utilitarian features of products, but that it fulfills a source-distinguishing function” (Ladas). All trademark applications must be filed in relevance with the objectives of ‘good faith’ and ‘honesty’. The court and federal government has the right to impose significantly increased fines against infringements and piracy (Ladas). The overall nature of the network has transformed gradually. Contents and applications are now shifting to digital media i.e. Internet. This has created Internet as an important element for enterprises and brands. Organizations and enterprises are now focused more on managing strategies for digital web media. Web and web applications have imposed two major threats for the trademark and piracy protections. Managing performance on a global platform where there is no gate keeping makes the fact inevitable that it can easily be infringed and can be copied. Secondly, trademark protection becomes difficult when it is almost impossible to differentiate between original content and malicious one as all web traffic looks the same for users (Dinwoodie and Janis). ‘Bits’ is the basis of computer technology and everything in cyberspace is made from it. Because of these bits, there is no certain limit to the duplication of any content over the Internet and anything can be reproduced as many times as wanted. For these reasons, various cases have been witnessed, which incorporated the false use of trademarks and their infringement. The organizations are, however, trying to protect their content and trademark through firewalls, SSL, and host security etc., but numerous attacks on web applications have been made so far in which these technologies failed to protect them (Dinwoodie and Janis). Since, Internet is a vast platform and everything can not be monitored by the organizational staff therefore, it is the role of the government to look into the matter so that the issue can be addressed officially, making it easy for owners who have their trademark rights. Trademark infringement on the web and web application has now become a very common and vastly adopted phenomenon. Despite the rights given to the trademark owners, their mark can be easily copied or reproduced with little or no changes on the web or web application. Some web and web applications also use trademarks of others without their permission and associate them with their own product. Sometimes, the infringement is done across borders, which requires international laws, but due to the absence of international policies the process becomes complex (Dinwoodie and Janis). Since, the Canadian trademark law or Common Law does not necessarily require registration (as mostly it has to undergo three steps for eligibility of its protection) for the trademark therefore, it sometimes becomes easy for infringers to use trademarks over the web and web applications. To quote, there are no certain laws that can be used to address the trademark infringement or other challenges that are imposed on it because of web and web apps. However, the Canadian trademark act ensures that if any infringement is witnessed either on the web or web application than that will be assessed and judged legally according to the Trademark Act, keeping in view all the legal aspects of the law and piracy. But it is essential that the claimant should meet all the basic requirements as set out in the Lego case (Dinwoodie and Janis; Ladas). Same protection is provided to trademarks under the common trademark laws, and no specific laws are designed solely for cyberspace. This has surely increased the challenges for the trademark owners imposed by web and web applications. Common trademark laws are practiced in the United States and Canada. Trademark Act has defined various provisions for trademark, its registration and the rights given to the trademark owner. Moreover, the act also deals with the infringement. There are no certain laws for trademark piracy over the web and web application (cyberspace). It is high time that authorities and international law makers should have looked into this matter and designed policies solely for trademark and the cyber space. Works Cited uspto.gov. Trademark Basics. 2014. 2014 йил 24-February . Dinwoodie, Graeme B and Mark D Janis. Trademark Law and Theory: A Handbook of Contemporary Research. Cheltenham: Edward Elgar, 2008. Ladas, Stephen Pericles. Patents, Trademarks, and Related Rights: National and international protection. Cambridge: Harvard University Press, 1975. Read More