Definition and Function of the Trademark
NGUYEN THAI CUONG
Keywords: History of the trademark, definition of the trademark, function of trademark, brand, trade name.
Summary: Trademark is one of the important assets of the enterprise. This is the way that businesses introduce their products to customers, consumers and fame, prestige production and trading.
The article includes issues as follow:
- History of the trademark
- Definition of the trademark
- Distinguished brands with some other concepts: Trademarks, trade name.
- Main functions of trademarks
- History of the trademark:
Patents and industrial designs, most countries have enacted legislation on the registration and protection of trademarks. Trademark is one of the important assets of the enterprise. This is the way that businesses introduce their products to customers, consumers and fame, prestige production and trading. When goods and services have gained a foothold certain trademarks will contribute to creating huge profits through the production of goods or services bearing the mark or sign contracts allow holders others use the mark.
Trademark protection laws are recorded first in the Law on Enterprises, fabrication facilities and crafts workshops furnace of France in 1809. This Law regulates acts of counterfeiting brands such crimes sanctioned arbitrarily falsified documents papers. Date 23/06/1857, France enactment of symbols, brands manufactured. Trademark law gradually formed on countries: Italy (August 30/8/1868), Belgium (dated 01/4/1879), United States (dated 03.03.1881), the UK (Day 25/8 / 1883), Germany (dated 03.12.1894), Russia (dated 26.02.1896), Japan (1875). The laws are quite detailed provisions on the protection mechanisms for the brand:
Paris Convention for the Protection of Industrial Property was signed on 20.03.1883 in Paris, to be reviewed and revised in Rome in 1886, at the Madrid 1890, in Brussels in 1897 and 1900, in Washington in 1911 , in The Hague in 1925, London in 1934, in Lisbon in 1958, in Stockholm in 1967 and amended in 1979.
1891 Madrid Agreement was adopted in Spain. The content of this Agreement is to establish a procedure for registration of international trademarks. Function distinguish goods and services of the same type. This is the basic function and importance of the brand, through signs such as words, images, or combinations of signs have unique and distinctive to help consumers distinguish between goods and services, same type, thereby choosing the goods and services consistent with the needs, your interests.
- Definition of the trademark:
IP Law defines the trademark:
Trademark is a sign used to distinguish goods and services of organizations and different individuals.
The conditions established trademarks:
– Must be signs;
– Signs must be tied to the products, goods and services;
– Signs that must be capable of personalized goods such services with the same kind of goods and services, information for consumers to know which goods and services of one. Through signs that consumers will visualize, relate to the quality and reputation of the goods and services that the selection decision to use or not.
Article 15 (1) of the TRIPS Agreement defines the trademark as follows:
Any sign or combination of signs capable of distinguishing the goods or services of one person to another, are capable of forming the brand. The signs, especially words related to proper names, characters, numbers, graphical elements and combinations of colors as well as a combination of any of the signs listed above, must be published trademarked. In case the signs themselves are not capable of distinguishing the goods or services corresponding to, the Member State may require the ability to be registered based on the distinction achieved through the use. Member states may require, as a condition for registration, the registration mark to be tangible.
Brands can be divided into two groups, marks for goods and marks for services:
Example: MILK Brand VINA Vietnam’s dairy companies, dealing in dairy products.
Example: Saigon Tourist trademarks are trademarks of travel service company Travel Ho Chi Minh City (Saigon) is formed and in operation since 1975. In accordance with the decision of 31/03/1999 People’s Committee of Ho Chi Minh city, the Corporation Saigon Tourism was established, comprised of member units, which take the tourist company in Ho Chi Minh city as the core.
Distinguished brands with some other concepts:
– Brands and trademarks:
Trademarks are material factors we can perceive through the senses, not an intangible asset that IPR protection law. The main function of trademarks is information of which recorded content is required for the product (commodity name, the name and address of manufacturer, place of manufacture, shelf life, composition , quality standards, storage instructions …) and the content usually describes the nature of such products, the use and utility of goods. Labeling may also include non-mandatory content such as drawings, decorations … Thereby leading to confusion between the trademarks and brands. If the function of labeling information, the most important function of the mark is distinctive. Therefore, the signs are used to indicate to marks have to be unique, there is no content description, directions of use or origin of goods, while the content on labels of goods only the nature of information.
A trademark can be used for many different kinds of goods of the same owner, the label for goods, the only use for a specific kind of unique merchandise.
– Brands and Trade name:
Trade name is also an object of IP protection in the field of industrial property rights. The main function of the trade name for personalization business subjects, distinguishing business establishments and business activities. While the main function of the trademark is to distinguish goods or services of the same type of production and business establishments, different traders.
When establishing a business, trade names used to register with the state agency authorized as municipal investment plans or tax authorities … In business, the owner can use a trade name his representing businesses in transactions with other entities. Therefore, the trade name must be expressed in words or digits, which can be “called” pronounceable. A business is only one trade name (the name may have internal and external names). Meanwhile, label hieula sign used to distinguish goods or services. Thus, the brand can be in the form of numbers, words or images, colors so that when looking at consumers, customers can distinguish between brands of different products. Besides, a business can not only produce, trading a product which can have many different products, which can possess many different brands. In some cases, businesses use trade names and brand overlap. Current law does not restrict the issue. Here are some differences between trade names and trademarks:
|Function||Signs distinguish the actors, organizations and individuals used in business operations, distinguishing the business in the same sector and the business sector
|A sign distinguishing goods or services|
|Composition||Words, digits that can read||Words, numbers, images, colors
|Scope of protection
|In a locality
|Term of Protection
|10 years (can be extended several times)|
– Trademark and brand
Brand is not an object of industrial property new that it is a term used in marketing refers to the signs used in commerce as a marketing tool important to build up the image and corporate reputation in the eyes of consumers, including trademarks, service marks, trade names, geographical indications are the objects of industrial property are protected by law.
Brands and trademarks are completely similar because they are both born through a name, an icon. But in terms of function and functional interior is completely different, such as the same name BITI’S, it is both the brands, both brand. When manufacturers decide to market a new product, first named for the goods and services that aim to identify and distinguish the product already exists in the market. Once the mark is registered with the competent state authority and granted a protection title, label received the protection of the state. However, this time the brand has not yet exist, just as the market appear more and more people learn about the product, the service (the process of commercialization), part of the brand moved into brand and when talking about the name of the product or service that people use the word “brand”. Can understand the essence of the brand is a mark has been “commercialized”.
– Brands and trademarks
“Labeling is written, prints, drawings, copies of letters, drawings, photographs glued, printing, casting, carving directly on goods and commercial packages of goods or on other materials which are mounted on the cargo, commercial packages of goods”
Labeling is what comes with the goods traded on the market. The function of trademarks mainly provide necessary information about the product to consumers, describe the nature, quality, quantity, expiry date and other information related to that product. Meanwhile, the function of the trademark is to distinguish the products together.
- Main functions of trademarks
- Indication of source:
Brand is a symbol of prestige trade. Brands must reflect the origin of goods and services.
- Advertising or Marketing
Brand contributed to distinguish and identify the goods and services. In the market where an increase of the same type of goods allowed consumer goods identification of a specific merchant.
- c) Quality assurance
Brand helps brand owners maintain stable quality goods and services offered under the mark. This will provide a basis for consumers to ensure when choosing a product. Consumers use the information about the origin and quality to believe the product to consolidate their buying determination.
 HCMC University of Law, «Curriculum Intellectual Property Law», Publisher Hong Duc, 2012, p. 282.
 Clause 16, Article 4 IP Law
 Faculty of Law of Hue University – “Curriculum Legislation IPR”, edited by Dr. Doan Duc Luong, Publisher National Political, Hanoi, 2012, p. 208.
 Japanese Patent Office, «Protection of trademarks – Handbook for Entrepreneurs”, pages 11, 12.
 Vu Thi Hai Yen, Chapter 3 «Curriculum IP Law» (Editor: Dr. Le Dinh Nghi – Dr. Vu Thi Hai Yen), Publisher Vietnam Education, 2010, p. 99.
 Faculty of Law of Hue University, “IPR law curriculum”, Publisher National Political, 2012, p. 210.
Tran Dinh Hao (National Economic University), “Solutions trademark protection of enterprises in Hanoi” ministerial level scientific research topic in 2004.
 Decree No. 89/2006 / ND-CP dated 30/8/2006 of the Government on goods labels.
 Michael Blakeney – Institute for Intellectual Property Queen Mary, University of London. “Teaching Resources on Intellectual Property – Trademarks and Geographical Indications”, Page 3.