For the purpose of identification of the source of goods or services, marks enable consumers to ensure expected quality. Further, marks help consumers to identify goods and services that meet their individual expectations. Additionally, trademarks ensure accountability and responsibility for in the absence of these, a seller's mistakes or low quality products would be untraceable to their source. Therefore, trademarks not only provide an incentive to maintain a good reputation for a predictable quality of goods but also make it essential to be responsible for the quality and price of the goods manufactured or sold. One of the main underlying purposes of trade mark law is to protect the owner's investment in the quality of the goods or services sold from dilution due to unfair competition and deceptive advertising by unscrupulous competitors.
With the purpose of defining which goods or services a company has rights over, all goods and services in the world are categorised into 45 (formerly 42) internationally recognised categories. A trade mark registration will only be for some of these categories. Further, within each category the trade mark application must specify exactly which goods/services are claimed. For instance, most trade mark registries will not accept applications which try to claim all goods in Class 1.
Trademarks must be
Trademarks must be actively used and defended in contrast to other forms of intellectual property such as copyrights and patents. A copyright or patent holder may "sit on" his creation and prevent its use, but a company claiming (even registering) a trademark that fails to make active use of it, or fails to defend it against infringement, may lose the exclusive right to it. Further, if a court rules that a formerly trademarked term has become "generic" through common use or in other words the average consumer doesn't realize it is a trademark, it may also be ruled invalid. (Trademark, 2006).
In the sequel the registrability of certain types of marks under the 1994 Trade Marks Act, including the grounds for their acceptance or refusal will be contemplated.
One, the trademark smell of roses as applied to Rambling Rose Dolls. Amendment to the U.K. Trademark Act in 1994 has resulted in a number of scent registrations being issued in the U.K. These include the registration of the smell of roses as applied to car tyres (Sumitomo Rubber Industries Ltd., Registration No. 2,001,416). In addition, applications for scent marks in other European countries have also originated and the OHIM has permitted the registration of a trade mark comprising "The Smell of Fresh Cut Grass (Application No. 428,870) for tennis balls. This mark is also registered in Benelux (Registration No. 591,693). (Sarginson, Lloyd C. & Sversky, Lillian, March 29, 2000). Many a time the purpose of scents is to increase the attractiveness of products. However, it is highly unlikely that potential consumers will associate these fragrances with the product and hence it makes the task of establishing adequate distinctiveness on this basis difficult. In order to be registrable a smell mark:
1. It must be established that the smell is either used or will be used as a trademark.
2. The smell is an additional component created by the manufacturer and does not arise from the goods or services.
3. The public either associates or will associate the smell exclusively with that