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COURT HOLIDAYS IN 2009
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| Ashura Muharram |
| Kashmir Day |
| Eid-i-Milad-un-Nabi (S.A.W.) |
| Pakistan Day |
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Christmas |
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| FAQ's About |
| Trademark Registration in Pakistan |
| F |
What is a trademark? |
Trademark means any mark capable of
being represented graphically which is capable of
distinguishing goods or services of one undertaking
from those of other undertakings. Traditionally,
the term, "trademark," described only
marks designating products, or "goods"
(as opposed to services). However, the word is increasingly
being used to describe any type of mark, not just
traditional "trademarks." These other
marks are service marks and trade dress.
Trademarks are generally defined as distinctive
symbols, pictures, or words that sellers affix to
distinguish and identify the origin of their products.
Trademark status may also be granted to distinctive
and unique packaging, color combinations, building
designs, product styles, and overall presentations.
It is also possible to receive trademark status
for identification that is not on its face distinct
or unique but which has developed a secondary meaning
over time that identifies it with the product or
seller.
The owner of a trademark has exclusive right to
use it on the product it was intended to identify
and often on related products. The primary purpose
of trademarks is to prevent consumers from becoming
confused about the source or origin of a product
or service. |
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| F |
How are trademarks acquired? |
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Trademarks are acquired through adoption
and use. Trademarks may also be obtained by assignment. |
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| F |
How is Trademark Adopted? |
| When a trademark is considered, and before
it is adopted, a trademark attorney should be consulted, and
a search be carried out to determine whether the trademark
is available for adoption and use. Searching minimizes investments
in trademarks that cannot be used, while preventing the inadvertent
infringement of trademarks held by others. A trademark should
also not be adopted, or used, if the search indicates it is
likely to cause confusion and deception to somebody's trademark.
PLEASE CONSULT PAKGLOBAL FOR TRADEMARK SEARCH IN PAKISTAN
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| F |
How to use a Trademark? |
Proper use of trademarks is important ,
in any decision to acquire, register, or maintain them. Proper
use preserves a mark's ability to identify the origin of products
or services, and increases the trademark's potential for quality
of the product to be associated with the mark. Proper use
reduces the likelihood that a mark will become generic, or
be abandoned, unintentionally, by its rightful owner.
To properly use a trademark one may give notice of trademark
rights. Providing public notice of trademark rights is important,
for registered and unregistered trademarks alike. The appropriate
form of notice to employ, depends on whether the mark is registered
with the Registrar of Trademarks Pakistan. In order to give
notice that a mark is registered with the Registrar one may
use the symbol, "®". Failure to employ this
notice, each time a registered mark is used, may hinder the
prosecution of a trademark infringement action, by allowing
the wrongdoer to claim "innocent infringement" as
a defense. If the mark is unregistered, one can't use the
above notice because the use of the same on an unregistered
trademark/s is an offence, punishable by fines and/or imprisonment.
Notice of rights in an unregistered mark, may consist of one
of the following notations, usually appearing above, and to
the right of, the mark in which rights are asserted:
1. (TM) for an unregistered trademark;
and,
2. (SM) or (TM) for an unregistered service mark.
Marks are adjectives, and be used only
as such. Marks must not be used as nouns or verbs. Nor should
marks be pluralized, or used in the possessive form. Non-adjectival
uses of marks, over time, can result in genericness, or a
finding of unintentional abandonment, even when such use emanates
from the public, rather than a trademark owner.
SURF is an example of how the public has made a generic
noun of the SURF trademark to describe detergent powders.
Using the word, "brand," after a mark, and before
the generic product name, helps guards against non-adjectival
use. Adding a generic term for trademarked products and service
marked services, helps as well. For example, to help guard
against the public continuing to use the word SURF
as a generic noun for a detergent powder, SURF may start making
themselves known as SURF brand detergent powders. This
makes the trademark SURF an adjective for the brand
of detergent powders.
Trademarks may also be used distinctively to create a distinct
commercial impression in the minds of consumers regarding
a mark, and the products, services, and business it represents.
To help create the distinct commercial impression trademarks
should be CAPITALIZED, underlined, italicized, placed in "quotation
marks," or depicted in boldface type, whenever they appear
in printed or electronic media. Combining a logo with a word
mark can help create and enhance a distinctive commercial
impression, and it could also help distinguish two similar
word marks from one another.
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| F |
What are the legal requirements for registering a trademark? |
Following are the basic requirements for
filing a trademark with the Registrar of Trademarks Pakistan.
1. The mark is filed under the name of
the actual owner of the mark. The owner of the mark is the
person who controls the nature and the quality of the goods
sold or the services rendered under the mark. The owner
does not have to be an individual; the owner can be a partnership,
a corporation, or an association. If the owner is a corporation,
then the applicant's name is the name of the corporation.
2. The applicant is required to indicate what type of entity
it is (individual, corporation, etc.) and the its national
citizenship. It is not required that the applicant has Pakistani
citizenship.
3. The application must be based on an actual use or on
a real intention to use the mark in business. For the application
to be based actual use, the applicant should indicate what
products he or she has actually placed the mark on and sold
for business.
4. The applicant is further required to submit a drawing
of the mark and a specimen of the mark when the application
is based on actual use. Labels, tags, or containers for
the goods are considered to be acceptable specimens of use
for a trademark. A drawing is a page that depicts the mark
you seek to register. In an application based on actual
use, the drawing must show the mark as it is actually used
(i.e., as shown by the specimens). In the case of an application
based on a real intention to use, the drawing must show
the mark as the applicant intends to use it.
5. The application should accompany a bank draft/pay order
in favour of Director General IPO Pakistan of the amount
as notified by the Registrar from time to time. In case
of application filed by attorney/agent the power of attorney
in the form of TM-48 duly filled in may also be filed.
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| F |
What are the advantages for registering the trade mark with the Registrar?
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By registering your trademark with the
Registrar you derive the following advantages
1. Constructive notice through out Pakistan
of the trademark owner's claim.
2. Evidence of ownership of the trademark.
3. Jurisdiction of courts may be invoked for reliefs in
the form of injunctions, infringement suits and claims for
damages..
4. Registration can be used as a basis for obtaining registration
in foreign countries.
5. Registration may be filed with Customs Service to prevent
importation of infringing foreign goods
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| F |
What is a service mark?
|
A service mark, like a trademark, is a
type of mark which indicates the source or origin of services
(as opposed to goods). For all practical purposes, trademarks
and service marks are governed by identical rules of validity,
use, legal protection, and infringement.
A service mark is quite similar to a trademark, except that
it is used to distinguish services in the stream of commerce,
rather than being used to identify a product. Like a trademark,
a service mark can include words, names, symbols and logos.
While trademarks appear on the actual product or its packaging,
service marks appear mostly in advertising for the services,
forinstance on letter heads brochures, leaflets, banners,
handbills, printed and electronic media
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| F |
What is the difference between a service mark and a trademark?
|
The only difference between a service
mark and a trademark is that a trademark indicates the source
and origin of a particular product. For example, if a business
uses a name or logo to identify a product, such as a cell
phone, it is called a trademark. However, if the business
uses a name or logo to identify a service it provides, like
WAPDA, which provide services for the development of eater
and poer resources. Trademarks and service marks are actually
the same thing, other than the one difference, and both are
subject to the same protections under trademarks Ordinance.
Both trademarks and service marks can be registered with the
Registrar of Trademarks Pakistan.
Trademark nor a Service mark is eligible to be registered
if it is:
- Immoral, deceptive or scandalous matter;
- A mark that resembles one already registered that is likely
to cause confusion, mistake or deception; or
- A mark that is merely descriptive, or a deceptive description
of goods, or primarily a geographical description or deceptive
geographical description of goods, or a surname - unless
the mark has become distinctive of the applicant's goods
in commerce.
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| F |
How are trade names different from trademarks and service marks?
|
Unlike a trademark or service mark trade
name identifies a company and its business, rather the specific
products or services offered by that business, which is why
trade names are not marks. However, trade names and marks are
related.
For example, if one business adopts a trade name similar to
a trademark used by another, the trade name of the one business
may severely effect the trademark used by the other in identifying
the source or origin of its goods.Consumers may come to believe
that the business having the trade name makes the goods sold
by the business holding the trademark. Therefore conflicts may
arise between trade names and trademarks.
Similarly if a business's trade name is the same as another
business's service mark that identifies the source and origins
of that business's services a conflict can also arise between
the trade name and the service mark if the trade name is strikingly
similar to another business's service mark.
Trade names can function as trademarks. Many companies use all
or part of their business names as trademarks on their products,
or service marks in connection with their services. Additionally,
when a company uses a trade name in this dual manner, it becomes
even more important that competing companies refrain from using
a similar trade name or mark or they could become party to a
trademark infringement lawsuit. |
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| F |
What is trade dress?
|
Trade dress also is a type of mark. "Trade
dress" refers to the overall image or impression of a product
the way in which the product is packaged and presented to consumers.
Generally, only those elements of a product which are nonfunctional
as opposed to functional elements, such as yellow packaging
of Kodak film which have acquired a secondary meaning, and which
inform consumers about a product's source, are considered protectible
product trade dress. Under trademark law, trade dress is the
total commercial image of a product.
Generally trade dress is defined as the "'total image and
overall appearance'" of a good, further specifying that
it 'may include features such as size, shape, color or color
combinations, texture, graphics, or even particular sales techniques.' |
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| F |
How is the Trade Dress Infringement claimed?
|
Remedies for infringement of trade dress
can either be obtained by applying the common law or by applying
the statute law. To qualify for protection, the dress must be
non-functional (to avoid conflict with the patent laws) and,
like a trademark, must serve the purpose of denoting the source
of the product.
For trade dress infringement a plaintiff must prove by a preponderance
of the evidence:
(1) that its trade dress has obtained "secondary
meaning" in the marketplace;
(2) that the trade dress of
the two competing products is confusingly similar; and
(3) that
the appropriated features of the trade dress are primarily nonfunctional.
"Secondary meaning" refers to evidence that, upon
seeing a name, book series title or in this case, a packaging,
the public has come to believe that the product related to such
name, series title or packaging comes from a particular manufacturer
(publisher etc.) and that a similar use by another would create
a likelihood of confusion in the minds of the public as to source.
To establish a superior right to one's unique trade dress, trade
dress must indicate or be distinctive towards business or product.
This is accomplished by showing that the public associates the
trade dress with a particular source. Examples of a trade dress
would involve the coloring, shape and or the packaging of products.
It should also be indicated that a competitor's trade dress
might resemble your company's trade dress, therefore creating
a false sense of affiliation or collaboration between the two
companies to the public.
Trade dress protection can be claimed if the trade dress is
distinctive and indicates source of business. One can also claim
trade dress protection if the public associates other products
with his trade dress and believes the source to be his company,
causing a likelihood of confusion. |
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| F |
Certification Mark What is?
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A certification mark is any word, name,
symbol, device, or any combination, used, or intended to be
used, in commerce with the owner's permission by someone other
than its owner, to certify regional or other geographic origin,
material, mode of manufacture, quality, accuracy, or other characteristics
of someone's goods or services. It is a type of trademark whereby
a trader can use the mark to indicate the origin, material,
mode of manufacture of goods, performance of services, quality,
accuracy of other characteristics.(See Sec-83 TMO2001)
Certification marks are frequently used by industrial standards
bodies or certification companies to show "approval"
of another product in some way. Certification marks are usually
given for compliance with defined standards, but are not confined
to any membership. They may be used by anyone who can certify
that the products involved meet certain established standards.
Famous certification marks include Harris Tweeds (a special
weave from a specific area in Scotland) and WOOLMARK
which certifies that the goods on which it is used are made
of 100% wool.
Certification mark can be used by a variety of traders, rather
than just one individual concern.Certification marks can be
owned by independent companies absolutely unrelated in ownership
to the companies, offering goods or rendering services under
the particular certification mark.
The certification represented by a certification mark does not
necessarily relate to technical standards. Rather, the mark
can indicate material content, some quality of material or manufacture,
a method of manufacture or a mode of service, the geographic
origin of the product, or that the provider or manufacturer
meets the standards of or is sanctioned by a particular organization.
The mark's owner has a responsibility both to see that users
of the mark continue to satisfy the criteria represented by
the mark and to make clear to consumers what the mark represents.
Certification marks may be used together with the individual
trademark of the producer of a given good. The label used as
a certification mark will be evidence that the company's products
meet the specific standards required for the use of the certification
mark. |
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| F |
How are Certification Marks used?
|
Trade Marks Ordinance 2001 provide
for the filing of the regulations as an additional requirement
for registration of certification marks (See second schedule
to the Ord).The regulations governing the use of certification
marks normally specify that in order for it to be valid, it
must include:
- who shall be authorized to use the
certification mark,
- characteristics to be certified by the the certification
mark;
- How the certifying body shall test those characteristics
and supervise the use of the certification mark;
- The fee if any to be paid in connection with the operation
of mark and the procedures for resolving the disputes and
any further requirements with which the regulations have
to comply may be imposed.
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| F |
How are registered certification marks assigned?
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| Registered certification marks can be assigned
with the consent of the Registrar. |
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| F |
What are the uses of Collective Marks?
|
Trade Marks Ordinance 2001, provide
for the filing of the regulations as an additional requirement
for registration of the collective trademark.The owner of
the collective mark is responsible for ensuring the compliance
with certain standards (usually fixed in the regulations concerning
the use of the collective mark) by its members.
The regulations governing the use of collective marks normally
specify that in order for it to be valid, it must include:
- Persons authorized to use the marks;
- Information on the members authorized to use the collective
mark, including their names, adresses etc;
- The conditions of membership of associations;
- The conditions of use of the collective trade mark;
- The prescriptions relating to the control of the use of
the collective trade mark, and
- The order of proceedings against unauthorized use of the
collective trade mark.
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| F |
What is the difference between a collective mark and a certification
mark? |
| Collective marks may only be used by a
specific group of enterprises (e.g., members of an association),
while certification marks may be used by anybody who complies
with the standards defined by the owner of the certification
mark. An important requirement for certification marks is that
the entity which applies for registration is considered "competent
to certify" the products concerned. |
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| F |
How long does it take to register a Trademark in Pakistan?
|
| At present the Trade Marks Registry is
taking two to three years in completing the registration process.
However it is hoped that the time will be reduced to eighteen
months to two years once the backlog is cleared. |
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