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Trademark rights, such as the right to exclusive use of a trademark, can be
established through actual use in the marketplace or registration with a trade
marks office. In general, such rights will only apply in the jurisdiction where
the trademark is used or registered, a quality which is sometimes known as
territoriality. However, there are a range of international trademark laws and
systems which facilitate the protection of trademarks around the world (see
International trade mark laws below).
A trademark may be registrable (ie. be eligible for registration) if amongst
other things it satisfies the essential trademark function, and is not generic
or descriptive. A trademark may have "distinctive character" without being
registrable.
Registrability can be perceived as a continuum, with generic and descriptive
marks at one end of this continuum, "fanciful" or "invented" marks (eg. Kodak)
at the other end, and suggestive marks and arbitrary marks laying somewhere in
between these two points. Suggestive marks are marks which have some descriptive
quality but which require imagination on the part of the consumer to identity
this quality (eg. the Mercury image for FTD suggesting delivery speed) and
arbitrary marks are usually common words which are used in a meaningless context
(eg. Apple for computers).
Therefore marks which identify or describe a product or service, or which are in
common use, or which are used as geographical indications, generally cannot be
registered as trademarks, as they must remain available for use by anyone (eg. a
generic term such as "apple"; or descriptive terms such as "red" or "juicy"
generally could not be registered in relation to apples). Although these
categories are most easily applied in relation to word marks, graphic elements
are evaluated on a similar basis. For example, a pine tree shape is descriptive
when used on pine-scented products.
However, in some jurisdictions even trademarks which are otherwise generic or
descriptive may be registrable where the public associates these trademarks with
a particular commercial origin or source. This association is sometimes known as
secondary meaning (eg. in the United States) or as acquired distinctiveness (eg.
in Common Law jurisdictions such as Australia, Hong Kong and the United
Kingdom). In some jurisdictions, secondary meaning may be established if the
trademark owner can demonstrate exclusive use of the mark for a defined period
of time. Evidence of use and tools such as consumer surveys may also be used to
show that the public will chiefly associate the descriptive mark with the
trademark owner and its products or services.
Most jurisdictions exclude some categories of terms and symbols from trademark
protection entirely. In addition to generic terms, excluded marks include marks
used for official government business (eg. national flags; the symbols of the
modern Olympic Games), marks that are deceptive as regarding the nature or
origin (including geographic origin) of the products or services to which they
apply, and marks that are considered morally offensive or obscene.
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