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Growing Trend of Trademark Registration

While it is a commonly assumed that trademarks are a new phenomena, the truth of the matter is that symbols, marks and the like to identify the source of goods or services, or claim ownership over a particular product or even livestock have been used since the very beginning of human civilization. The most distinguished marks were found in the Roman era where bricks manufactured were stamped with seals to mark possession. Human history is filled with marks found on cave walls, ceramic stamps on pottery, stone seals and even marks found on bells engraved by bell makers in the17th century. Trademark law in fact dates back to the year 1266 in England, to the law known as the ”bakers marking law” where bakers would mark the bread that they baked for sale.

With trademark history dating back several centuries, it is not surprising that almost all businesses today require a trademark to distinguish its product from that of its competitors. Trademarks bestow two main rights on the owner - the right to register the mark and the right to use the mark. The party that registers the mark first or uses the mark in commerce first has the right to use of that mark. However, the U.S.PTO’s authority is limited to only marks that have been registered. Therefore, although trademark law does not require registration of the mark to claim ownership, registration has become a necessity in order to better protect the mark from being used by another. To put it simply, the only method by which a trademark owner can prevent others from using the same mark for their goods or services is by registering his mark. Registration of a trademark in the U.S.PTO for example, will enforce the obligation on the PTO to refuse registration to any trademarks that it deems confusingly similar to the registered mark. Further, the registration gives the trademark owner the right to sue the infringer in a federal court. Therefore, it becomes apparent that the trademark owner has the responsibility to register his mark in order to protect it from potential infringers.

This has led to the growing trend of registration of trademarks. The term of federal registration is 10 years with 10 year renewal terms. However, unlike patent or copyright, the trademark owner may use his rights indefinitely as long as he continues to use the mark to identify his goods and services. Registration is allowed even for applicants that have not used the mark in commerce as long as they intend to use the mark in commerce in the near future. In fiscal year 2007, the PTO received 394,368 trademark applications . Modern methods of filing of applications have also significantly contributed to this boost. The PTO allows trademark applications to be filed electronically at a reduced rate. Therefore, applications for registration of a mark may be filed with the smallest amount of time and cost, an advantage for anyone in this fast-paced demanding world. The PTO records that 95.4% of the all trademark applications filed have been filed electronically in the year 2007.

Another rationale for growth in registration may be attributed to the globalization and escalation of multinational companies, simply because registration in one country may be used as the basis for registration in other countries. A company exporting internationally is faced with the risk of accidentally infringing the rights of other trademark owners in foreign countries unless their mark has been previously registered in that country. This registration has been made possible by the Madrid System of International Registration of Marks through the World Intellectual Property Organization, Geneva, Switzerland. This international application needs to be based upon a previously filed application or registered trademark in the home patent office through which the international application is filed. This system was created in order to ensure protection of marks in several countries by filing one single international application under either the Madrid Protocol or the Madrid Agreement, thereby cutting costs and the time consuming procedure of filing several national applications. Therefore, the owner of the mark can make changes to the application, pay fees and even renew the application in one easy process instead of following cumbersome administrative formalities in all countries chosen for registration of the mark.

The principal benefit of a registered trademark is that it grants a bundle of exclusive rights to the owner, especially the exclusive right to use the mark in relation to the goods and services to which it is registered. In addition, filing an application for registration in the U.S.PTO or even under the Madrid system provides the benefit of licensing these exclusive rights to third parties, thereby allowing for more creativity and expansion to a new market.

The increase in registration of marks may also be explained by the fact that unregistered marks are inherently at risk. Apart from the obvious reason that the mark may be used by another person for similar goods and services leading to the consumer confusion, there is the likelihood of the same person registering the mark before the original mark is registered. Second, without registration the owner will not be informed of any other confusingly similar marks prior to registration. Third, in the event that the owner’s mark infringes another, the previously registered mark has a strong case against the unregistered mark and is most likely to prevail in an infringement action.

It goes without saying that the benefits of registration of a mark outweigh the lack of non-registration of the mark and most companies, businesses and even individuals are swiftly acknowledging this fact leading to the overwhelming need for registration. The motivations vary, be it for protection of the mark or the requirement to expand the business globally or even the idea of being left out and being part of the declining minority with unregistered marks. For all of the reasons discussed above, registration of marks has now become a business necessity to protect the brand of the company’s product or services.

   
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