Everyone probably has an idea of what a trademark is, but not everyone might have spared it any serious thought, unless of course, circumstances make it imperative to do so.
A Trademark is a mark that is used or that is proposed to be used in relation to goods and services in order to indicate a connection between the proprietor or manufacturer of the goods or services. It may be referred to as a brand name, or the name under which a product or service is marketed or sold.
A trademark may be made up of an alphabet, words, numerals, a signature, name, an artistic representation, colour or a combination of all or any of them. For example, the colour yellow is affiliated with the telecommunications giant, MTN, while green is associated with the telecommunications company GLO. So both the yellow colour and the letters MTN constitute MTN’s trademark. Apple which is an example of a trademark is known for its unique symbol; an apple with a single bite. Phrases can also be a part of a business’ trademark. For example, the phrase, ‘Life’s Good’ is a part of the electronics company, LG’s trademark.
Organisations that do not produce goods, but render services use service marks. A service mark is a brand name that is used in the course of commerce to identify the provider of a service. However, in Nigerian law, no distinction is made between a service mark and a trademark. So businesses that render services alone, use trademarks to indicate a connection with their services. A service mark is just a more precise description used to show that the proprietor of the service mark renders services and not the production of goods.
An incident recently reported by the papers illustrates the importance of trademarks. The Ondo State Governor was linked to a branded whisky that had his nickname ‘Aketi’ on it and also had the Ondo State official logo on it. The branded whiskey with his name and the state’s logo created the impression that there is a link between the whiskey and the governor. The governor denied any association between himself and the drink carrying his nickname and the state’s logo.
Trademark plays two key roles in business and commerce. It serves as a tool of identification and distinction, therefore setting apart the goods and services of a particular manufacturer or producer from the goods and services of another. Imagine if milk is sold and marketed in a plain package without any trademark, how would a customer be able to distinguish Cowbell milk from Peak Milk, or Dano Milk? Trademarks therefore play a crucial role in distinguishing similar goods and services and showing their origin. Where a product over time acquires goodwill, that is a valuable reputation, the producer or manufacturer of the goods or service enjoys exclusively the benefit of the positive perception and reception of his/her goods and services.
A trademark also performs what may generally be referred to as a guarantee function. It does this by asserting that goods and services bearing a particular trademark possess a certain quality. This gives a consumer a warranty or assurance of a certain expected quality and encourages patronage. A trademark may also be a signal to a person to avoid a product because of its unsatisfactory quality. For example, the teething medication, ‘my pikin teething medicine’ that killed about 84 babies in Nigeria was pulled off the market and mothers avoided the drug.