Trademark law requires a trademark to be distinctive in order to be registered, meaning that it must evoke associations of a particular good in the minds of consumers, and cannot be a common name or public mark. Nontraditional marks, such as colors, sounds, and smells, can also be protected under modern trademark law.
According to trademark law, a trademark is a sign, such as a symbol, letter, or shape, that a person uses to distinguish goods related to his or her business from those of others. Trademarks themselves indicate the source of goods and play an important role in helping consumers choose the goods they want. In order for a mark to be registered as a trademark and protected by exclusive monopoly rights, it must first be recognized as distinctive, meaning that it distinguishes one’s goods from those of others. Distinctiveness is one of the most important concepts in trademark law, and it refers to the ability of a trademark to evoke associations of a particular product in the minds of consumers.
According to Article 6 of the Trademark Act, “Requirements for Registration of Trademarks,” a trademark that is merely the common name of a good or a generic name for that good is not generally recognized as distinctive. A common name is a name that is commonly used to refer to the goods, such as apple, salt, etc. For example, the word “apple” cannot be registered as a trademark because it is a generic term that anyone can use. However, even if it is a generic name, it can be trademarked if it is designed in such a way that the meaning of the characters is not intuitively obvious, or if it is combined with other distinctive characters or shapes to form a distinctive whole. For example, an image of an apple creatively designed or combined with a distinctive font may qualify as a trademark. A generic mark is a mark that was once the trademark of a specific person, but the trademark holder laxed in its control of the mark and allowed others to use it freely and generically. Such a tolerant mark can be registered as a trademark if it is combined with another distinctive mark.
Descriptive marks that merely indicate the origin, quality, potency, or method of production of goods are also not registrable. This is because the source of the goods cannot be identified by these marks alone, and competitors must be free to use them to characterize their own goods. For example, descriptive marks such as “top quality” or “natural ingredients” cannot be used exclusively because anyone should be able to use them on their goods. In these cases, trademark law serves to promote fair competition and protect the interests of consumers.
In addition, trademarks consisting solely of distinctive geographical names, such as the name of a country or metropolitan area, common surnames or corporate names, such as “Park” or “Lee,” and simple and common signs are not recognized as distinctive. However, a distinctive geographical indication and a technical indication of the origin of goods may be registered as a collective indication when used directly by an entity consisting solely of persons who produce, manufacture, or process the goods for which the geographical indication can be used. These collective indications serve as a guarantee that goods from a particular region are of high quality.
Even if a mark is not recognized as distinctive, it can still be registered as a trademark if it combines to form a new idea. For example, a combination of simple shapes or letters can be recognized as a trademark if it creates a distinctive image. Also, if a mark is not a generic or fanciful mark, it can be registered as a trademark if it is “distinctive by use. This is because if the trademark has become identifiable among consumers as marking the goods of a particular person as a result of its use even before the application for trademark registration is filed, it is already functioning as a trademark and no longer needs to be protected from free use by competitors. By allowing the registration of such marks, the original purpose of trademark law is to protect the trademark owner’s reputation by preventing third parties from using the mark for unfair competition and to prevent consumers from being confused as to the source of goods.
There are certain trademarks that are not eligible for registration, even if they are recognized as distinctive, as set forth in Section 7 of the Trademark Act. Public marks, such as national flags or the names of international organizations, cannot be registered because they cannot be the exclusive property of a particular person and must be freely available to all. In addition, trademarks that are identical or similar to the registered trademarks of others that have been filed earlier and may cause confusion among consumers as to whose goods they are. This is to protect consumers and ensure fair competition. For example, if a trademark is registered that is similar to the trademark of a well-known brand, it may cause confusion among consumers, which may result in unfair trade.
Trademark law has also expanded the scope of trademarks as times have changed. Today, not only traditional letters and shapes can be trademarked, but also colors, sounds, and smells. These non-traditional trademarks are being utilized as a tool to make a strong impression on consumers and emphasize the uniqueness of a product. For example, a sound trademark can be registered for a particular melody that is associated with a particular brand. As such, trademark law protects many different types of trademarks, encouraging business creativity and providing consumers with more choices.
With all of these requirements and procedures, trademark law plays an important role in protecting businesses’ creative marks, preventing consumer confusion in choosing goods, and promoting fair market competition. Trademark registration does more than just protect the rights of businesses; it serves an important function in the overall economic system.
