Date: 13th January, 2021
by Ambica Sharma, TIPS, Dwarka
WHAT IS A TRADEMARK?
A trademark is an easily recognizable symbol, phrase, or word that indicates a specific product from a particular company. It differentiates a product or service from all other similar products and recognizes the source company's ownership of the brand.
The primary function of a trademark is to show the standard of a product/service to a customer. It is also a kind of symbol of an assurance made by a company to its customers.
A position mark consists of a specific placement of a trademark on a product. A position mark is often represented by a picture that shows how the mark is positioned and what size and proportion it's compared to the merchandise it's placed on.
A position mark is also one of those called “non-traditional marks”, a mark consisting of the precise way during which it's placed or affixed to the merchandise.
REGISTRATION OF A POSITION MARK
The positional trademark portrays graphically, an in-depth and clear description of the position of the positional trademark on a specific product becomes essential for the application of trademark registration.
It's necessary to specify a product (providing drawings) and indicate the position of the positional mark on the product while filling the application.
Since a specific positional trademark is or will be used on identical objects, it is also important to include both the graphical representation of the position of the mark and the additional information explaining about the position of the mark on the object.
Neither the entire depicted form nor the mark is often separately protected as a trademark. However, the mark placed on the precise position of the merchandise is indeed protected.
The following aspects must be taken into account while assessing whether the positional mark may be registered as the trademark:
Position. The particular positioning of the mark can be considered as an indication of origin only in cases when its positioning is a rare subject to a particular market. It is important to seek out whether a consumer expects the mark to be usually displayed within the specific position of the merchandise.
Mark. If it's regarded only as an ornamental element, the typical consumer won't evaluate the mark because of the indication of origin. Consequently, the mark will not have the distinctive feature.
An example is given by Levi Strauss. Levi’s red tab jeans are easily distinguishable by a small red label which is attached to the right back pocket of the jeans.