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Trademark law (Essay Sample)


the paper wanted me to explain what trademark is and give a case of how trademark law is applicable.


Trademark Law
Student’s Name
Institutional Affiliation
Trademark Law
A trademark can be defined as a symbol, phrase, fragrance, word, logo, shape, sound or color used in business in identifying and differentiating the goods of one manufacturer from another Businesses are expected to have their unique products different from their competitors. To allow this, they have been given the provision to patent their business secrets, and anyone who uses such for their own profit making ventures with no permission can be sued in the court of law. Laws governing trademark in business ensure that the business secrets are protected from being used by other businesses. For instance, United Parcel Service (UPS), the largest package delivery company, has patented color brown as their delivery color, and therefore, no other package delivery company can use the color in package delivery services. Trademark law helps the customers distinguish the products they are buying in such a way that they can differentiate goods of one company from the other. In this way, they are able to consume their taste easily and maintain the quality of their preferred products (Dinwoodie & Mark 2008).
In L'Oréal v Bellure, the defendants were accused of using an unfair advantage by engaging themselves in the production, distribution and marketing of fragrances that resembled products under the registered trademarks of L’Oreal. Such products included NOA NOA, TRESOR and ANAIS ANAIS. They could sell some of these fragrances with the marks of the plaintiff and the packaging was similar in appearance of those of L’Oreal. This prompted the plaintiffs to sue the defendants in the High Court with the trademark infringement proceedings. They stated that using of comparison lists was an infringement and was enforceable under the section 10 (1) of the Trademarks Act. The court in their judgment favored L’Oreal in relation to section 10(1). The ECJ decided that the defendants used unfair advantage in using the marks of their competitors in making their sales. The ECJ had enough proof that Bellure used unfair advantage of the products of Bellure to market their own products, which they also used same packaging (Dinwoodie & Mark 2008).
For a trademark to be ascertained in a business, it must make sure it meets certain condition as illustrated in the section 3(1(a)) of the Trademarks Act. This section states that for a trademark to be registered, it must first fulfill conditions that are in section 1(1) of the same act. Section 1 (1) outlines the requirements of a trademark as signs that are in the capacity of being represented in graphical means and can distinguish commodities of one undertaking from other goods and services of other undertakings. In Ralf Sieckmann v Deutsches Patent und Markenamt, the ECJ had to make a decision regarding the graphical representation of olfactory trademarks with reference to European Trade Marks Directive. The applicant of a trademark had given a description that was not clear when compared to the product the company produced. The substance which the company produced had a methyl cinnamate scent, but the applicant illustrated it as ‘a balsamically fruit with a slight hint of cinnamon’. The ECJ determined that the odor of the substance was not represented by the chem...
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