The Meaning of a Trademark and Goodwill

  1. INTRODUCTION
  • Definition of trademark

Any company has the right to take legal action if enough facts is provided to the court docket. The business that feels infringed may take legal action reinforced by the key points of intellectual property privileges. Company X gets the rights to have legal action against company Y on the basis of fundamental guidelines under intellectual property privileges. Company X is a supplier of cool smooth for men under the trade draw as cool gentle as the first company to join up under such a unique name. Company Y also begins to make real gentle for men under the trade tag real tender after company X is already trading. Trade make by Yu, (2007), is defined as any term, name, icon or device or any mixture thereof employed by a person to identify and distinguish his / her goods from these manufactured or sold by others also to indicate the foundation of the products.

In the situation of laximikant Patel vs Chetan bhat shah, it was held that the trade the definition of trade tag is very huge and means a mark with the capacity of being represented graphically and which is with the capacity of distinguish the products and services of one person from those of others. In this case company X has come up with a distinctive name as it brand as the foundation to all consumers or as a source of such something. Company X creating a name trade make that is totally different from any other company.

Furthermore, what's necessary is the bond between the symbol used in regards to the products and the person claiming the right to use the same. Lately in the case of Jaleel Affiliates vs Hotel glucose, it was held that if the name used in relation to goods or services for the purpose of indicating a span of trade between goods and services plus some person getting the right to use such name whether with or without any indication of the personal information of that person such name is a brand. In cases like this, company X under the hallmark cool soft is able to portray a certain that of trade and under such a trade, people are able to identify the trade or goods or services that are being provided and this becomes a hallmark. On the other hand company Y will not produce different things but follow in the same trade as company X which has curently have the trade make because to be able to make easy identification to customers on goods or services being provided in that particular market.

In addition, company X has also listed the trade tag cool soft. Beneath the Trade Mark Work section 14(1) provides that a mark is only going to be signed up as a trade tag if it contains or includes a term or words having no direct reference to the character or quality of the products and not physical name or surname. In cases like this company Y's trade draw real soft has a primary reference to the trade draw of company X which is prohibited under the Trade Draw Act.

  1. Goodwill

The goodwill of company X is portrayed were the cool soft has been promoted over a period, whilst company Y has just began making. Goodwill is potential to catch the attention of customers and potential customers to work with the owner. Company X has developed goodwill for a long period of the time. Customers have been buying their products, which has made the business to amass for income, maintaining a bigger market share and brand devotion. Unlike company Y who are just new to the business enterprise and is not tested in the industry for a longer time. Regarding Hotel Capriani vs Cipriani (Grosvenor block) 2010, it was held that the claimant succeeded in both action sued that have been hallmark infringement and passing off. Company X has the right to take such legal activities.

The facet of marketing the merchandise for a long period of time has made company X to be an established company, respected by many people and then the sufficient enough to have legal action. In the case of Jules Rimet vs the basketball Association, it happened that after taking into consideration the claimant's evidence which included references to the mascot in the press every once in awhile concluded that there was sufficient residual goodwill for action of passing of.

Apart from this, in the case of Reckitt and Coleman products Ltd vs Borden Inc, it happened that the lifestyle of the claimant's comprehensive and exclusive goodwill built over time, a misrepresentation as to the goods or services provided by the accused and harm to the claimant's goodwill therefore of the defendant's misrepresentation amounted to moving off. Company X has generated a reputation through the years and company Y by creating a product similar has somehow destabilize the sales, customers and market talk about of company X which in the case above volumes to moving off.

Passing off can be an try out by one trader taking advantage of the goodwill produced by another to the detriment of the trader. Company X has promoted over a time period and company Y has just started making similar products like the ones that company X is making. In a similar circumstance Erven Warnink Bv vs J Townsend & Sons Ltd (1979), it was held that not only damage anticipated to lost sales but damage to reputation when you are associated with inferior product amounted to passing off. Townsend was responsible for moving off their goods as those of Warnink and the judge applied the test for moving off which include and any situation where misrepresentation will probably injure the claimant's goodwill. There is no trademark infringement but moving off.

In order for one to claim transferring off, there should be elements of the following aspects
  • There must be considered a goodwill or reputation mounted on the goods or services of the claimant. In this case company X has marketed its product over a long period of time than company Y which has just began marketing same products. By marketing for a long period of energy, company X has generated a good marriage with customers. Sales have dropped credited to company Y producing the same kind of product thus generating away customers to choose the other product and minimizing the success of company X. Thus giving the right for company X to adopt legal action against company Y as this sums to passing off. In the case of Buckley LJ H P Bulmer Small vs Bollinger SA (1978), the court

held a man who partcipates in commercial activities may acquire a valuable reputation in respects of the products where he bargains, or of the assistance which he carries out or his business as an entity. The law regards such a reputation as an incorporeal piece of property, the integrity of which the dog owner is eligible for protect.

So in cases like this, company X has built a reputation by marketing for an extended time frame and by such the company's image, property and reputation are entitled to be covered.

  • For passage of to be proven there should be an aspect of misrepresentation. This element of misrepresentation is shown by company Y when processing the merchandise with similar presentation in white, dark blue and green colors as those that company X has produced for an extended period of time. Misrepresentation is a bogus description made consciously or unconsciously through the use of a symbol, trade name or get-up (brand, trade description, specific features of labelling or presentation) with that your goods of the claimant are associated and which will probably mislead the sensible members of the general public.

3. 0 Misrepresentation

  • In the case of Arsenal Football Club Plc vs Reed (2001), it happened that the disclaimer was sufficient enough to prevent misrepresentation which is a necessary element for passing off. The customers had not been deceived into buying and there is no real odds of confusion. However in this case company Y has labelled its product much like the people of company X thus creating distress as customers wouldn't normally have the ability to differentiate from the initial product hence deceiving customers.
  • The deception consequently of any misrepresentation can be an essential ingredient for a state in passing off. Regarding BP Amoco Plc vs John Kelly Ltd (2005), it happened that deception or its likelihood lies at the heart of the tort of passing off. If the customer can easily see sufficiently obviously when he gets near to the place that the product sold is not that of Bp, he will not buy the

petrol under the mistaken impression that he is getting Bp petrol. However in this case it is hard for a person to clearly see the difference as the packaging of company X is white, dark blue and green, similarly to the the one which company Y has started out manufacturing. The presentation looks the same and this causes deception as company Y would be offering its product to customers who might buy on the essence that the merchandise they are buying is for company X which includes been manufacturing the product for a long period of time. By doing so company Y is deceiving customers into buying something which is not the genuine known product on the market which is manufactured by company X. This still portions to moving off as company X is entitled to take legal actions under such circumstances.

In the situation of Combee international v Scholl (1975), the plaintiff created insoles called odox heaters which covered turned on charcoal. The defendant who was simply a well-known producer of footwear also produced odox heaters. We were holding packaged in the same way. It was performed that an injunction was granted on the basis that there is misrepresentation as the origin of the defendant's product which was inferior. So in the same way company X may take legal actions against company Y because company Y is packing just as as the product of company Y is sold. Furthermore in the case of Wilkinson Sword Ltd vs Cripps & Lee, the court organised that the plaintiff had indeed have an acceptable cause of action. Signifying company X gets the right to take legal activities.

  1. Damage to good wil

Damage to good will will be a loss of reputation or control over reputation, exposure to litigation or erosion of the tag. Company Y has just started out making similar goods as those made by company X. This has resulted in some of the customers buying from company Y thus minimizing the gross profit for company X because the two companies promote customers. In the case of Annabel's (Berkley Square Ltd vs G Shock (Annabel's Escort Organization), 1972, it happened that there a was sufficient relationship between what the public would consider the field of activity where both business conducted

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