A Trademark is a sign or any other means which allows distinguishing goods or services belonging to a person or company from identical or similar goods or services of another.
The basic function of a Trademark is to indicate the corporate origin of goods or services. It therefore protects a business or businessman against unfair competitors who try to benefit by copying another’s distinctive sign. A trademark also protects consumers because it helps them to clearly distinguish one good from another identical good, leaving it up to each consumer to buy the good he considers to be most appropriate.
The following can be Trademarks:
- Words or combinations of words.
- Images, figures, symbols and graphic depictions.
- Letters, figures and their combinations.
- Three-dimensional shapes and packaging.
- Containers, the shape or presentation of the good.
A Trademark registration is generally granted for ten years starting from the day the application was filed and can be renewed indefinitely for successive 10-year periods.
Registering a Trademark, however, is not as simple as just filing an application. Once filed, the application is subjected to a prosecution process in which the Law must be complied with. There is also a possibility that interested third parties with similar registrations may file an opposition.
All the goods and services that may exist are classified into 45 International Trademark Classes. The application to register a Trademark can comprise more than one class of goods or services from said classification, but fees must be paid for each class filed for in the application.
Though the right granted by a Trademark is exclusive, there is nothing to prevent two identical or similar signs from co-existing on the market and in the register, provided that they distinguish different goods or services. Accordingly, the Trademark must be registered in at least those classes comprising goods or services that have something in common with the ones offered by the company.
As for the scope of the registration, there are 3 possibilities in Spain:
- National Trademark, it covers the national territory. Trademark registration is currently regulated by Law 17/2001 of 7 December 2001, regulating the Registration of Trademarks.
- Trade Mark in the European Union. This registration is valid for all of the European Union and is the first unitary, multinational registration created in Europe because this type of trade mark can be registered, granted, waived, expired or annulled only in countries in the European Union. This registration was created by Community Regulation of 14 March 1994, which concerns Spain two-fold: first because it is a European State, and second because in order to prosecute a European Union Intellectual Property Office (EUIPO) was created in Alicante.
- The International Trademark was established in accordance with the Madrid Agreement of 1891 and the Madrid Protocol of 1989.
Basically, the only condition that must be met to apply for an International Trademark registration is for the trademark to be registered or filed for the same goods or services in our country. Today there are over 80 countries forming part of this Agreement and Protocol, including most of Europe and other highly industrialized countries worldwide.