Unit 4: Law of Trademark
4.1 Concept and Elements of Trademark
A trademark is the sign that distinguishes — a visible sign (word, name, symbol, device, numeral, label, or combination) representing one business’s goods or services against all others’. It is the consumer’s shorthand: the origin’s signal, the quality’s promise, and the goodwill’s container. The elements: (1) distinctiveness — the capacity to distinguish (inherent or acquired); (2) non-deceptiveness and legality — no deception of the public, no barred signs (flags, state emblems, immoral matter); (3) use or intent to use in trade — the bona fide commercial nexus; (4) visual perceptibility — the Nepali Act’s face (the non-traditional sound-and-scent marks remain a comparative debate).
4.2 Justifications on Protection of Trademark
- The consumer’s protection: the mark reduces search costs (the choice’s compression) and prevents deception (the confusion’s bar).
- The producer’s investment: the quality’s reputation and the goodwill earned deserve property’s shield against the free-rider.
- Fair competition’s order: the mark’s protection is the unfair-competition law’s frontline (U6.6’s link).
- The economy’s brand value: licensing, franchising and FDI travel on strong marks (the Investment Law interface, LAW5709).
4.3 Functions and Types/Kinds of Trademark and Trademark Distinctiveness Spectrum
The functions: the source function (whose product is this?); the quality function (the consistent expectation); the advertising function (the marketing vehicle); the economic function (the transferable asset). The types: word, device and composite marks; service marks (services, not goods); collective and certification marks (the association’s mark; the standards’ seal — the GI bridge of U6.1); well-known marks (the Paris Article 6bis cross-class protection); trade names and domain names (the neighbouring worlds; the domain-and-mark conflicts of the cyber age). The distinctiveness spectrum (the exam’s ladder):
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