Trademark as a Way to Prove the Ownership of Intellectual Property

Introduction

Intellectual Property (IP) law, is a legal form of protection that gives right to owners to stop others from selling, recreating, importing or using his/her creations. Most business relies heavily on bright and sustainable ideas which often associates with contriving new products, creating a new brand or coming up with a new or distinct design. These ideas are a form of property that if not guarded could be exploited by others. Trademarks are often used by businesses to protect their brand. It could be applied to both name and/or logo. It’s a valuable term asset in business that needs renewing every decade. Copyrights automatically exists when documents such as photos, websites, all written work, films or plans are originated, especially when its produced in a company it should always keep track when and how it is copyrighted and produced from the date itself.

Copyrights usually sustains during one’s existence and a further add up of 7 decades once one ceased to exist, thus it is considered a long-term asset. However, if the company had asked and paid someone else to produce the document, the person paid, shall be the copyright holder and not the company, unless the person transfers the copyright to the company. When a buyer purchases product for its appearances, for eg; furniture, jewellery, clothes, these will be classified under design rights. Design rights are usually inexpensive for registration and cover local ground and abroad, furthermore those designs that are unregistered could also protect their rights which are automatic and cost free. The business may already own rights that even the owner is unaware about. Finally, when someone develops a new product or process, it is usually known as innovating a patent. A patent could usually last for 2 decades and registering a patent is very costly and thus making these investments usually are best seeking the advice of patent professionals. This opening paragraph shall relay on one of the issues on the components which is trademark, should there be an infringement committed known as trademark infringement.

Delicious Bakery Pte Ltd (Aroma Cakes) Versus Sweet Treats Pte Ltd (Aromatic Cakes)

Was there trademark infringement claimed by Delicious Bakery against Sweets Treats Pte Ltd? To establish if there is a trademark infringement usually occurs when there’s a likelihood of confusion existing between trademarks. This supposedly means the brands are very similar that the consumer may be mistaken to believe that the the 2 products come from the same source. In this case, Delicious Bakery filed the mark AROMA CAKES for their trade while Sweet Treats used the mark AROMATIC CAKES for its fresh new dessert pastries thus these created the confusion among consumers that believes purchasing the cakes from Sweet Treats, thinking its produces are part of Delicious Bakery’s franchise. There might also be an issue

Relevant Laws

Trademark

Under the trademark act; section 2 subsection (1), it conveys that anything which can brings the message across or information is a sign. A mark or sign doesn’t have to be perceived visually; it must satisfy the elements of being clear, self-contained, precise with an objective. It must also be easily accessible to whoever it may concern, durable and intelligent. These are the elements for trademark. Scents are not registered as a trademark because of its lack of comprehension perceived by the public as it is portrayed as substance and not the smell itself by its molecular formula thus not intelligent, clear and precise. Should the scent be described in words it will not be a clear objective or self-contained either, this can be cited by the relevant case, (Sieckman V German Patent and Trademark Office (2003)(Perry, 2016). Furthermore, it’s not easily accessible because to get the scent sample won’t be durable as well. Thus, it doesn’t satisfy the elements. Finally, the last requirement would be if it can distinguish goods and services of different tasks. Trademarks encourages the manufacturing of quality products to reward owners the uplifting of their good name on the brand.

Trademark Infringements and Rights of Trademark Owners

Usually the courts assess the infringement issues they asses through the eyes of the average consumers. The average consumers are reasonably well informed and observant and aware and has a slight overlook on details. Based on relative grounds, when someone applies for a trademark, the trademark will be published before it is registered which will give an opportunity for people to create commotion to oppose his/her trademark and this can be brought up for litigation under section 8 of the act. Under section 27 subsection (1) to (5), an infringement is committed when there’s a double identity, this means whether the claimant’s mark and the defendant’s mark are identical and whether the goods are identical. The law subsequently also mentions similarity and confusion whether the mark of the goods is similar, when similarity is concerned; conceptual similarity, oral similarity and visual similarity, means the overall impression of the mark. The claimant (trademark owner) must prove whether the goods are similar enough to cause the confusion associating with global appreciation to have a likelihood of confusion having an economic link between the mark and infringing sign that implies a trade connection between them. The last element would be where the marks are used not in the similar trade that they are existed for. An infringement also includes the use of trademark for trademark use. The relevant law that may be applicable would be (General Motors V Yplon, 1998)( Michaels and Norris, 2002).

Remedies

Remedies for trademark owners could go for would be normally under section 31 subsection (2)(a), any b) damages that have been incurred upon loss of sales on the original trademark holder could be accounted for from the infringing company.

Application

In this case given, Delicious Bakery is legible to go file a legal recourse against Sweet Treats for trademark infringement because Sweet Treats satisfied the elements of similarity and confusion. This is because when put together Aroma and Aromatic, the consumer would have thought of almost the same thing. The fundamental of this test is whether it is identical enough that when viewed, it contains differences so insignificant it confused the buyers (Reed V Reed, 2004) (Aplin and Davis, 2017) The relevant case law to support this will be (Canon V MGM, 1998).(Gibbons, 2016). In this case, it is similar to the relevant case, (Coca Cola Company V The Big Australian (Australia) Pty Ltd, 1999)(Sweeney, Bender,Courmadias,2015) where the name mark itself was almost similar to each that it calls to the mind of the buyers to overlook the last 3 letters of Aromatic and Aroma to actually cause the confusion and will proceed to belief the pastries were also from Delicious Bakery’s company.

Thus the element of name mark (conceptual, visual and oral similarity) is satisfied. Now we look at the goods that the infringing company sells, Sweet Treats uses the term Aromatic on their new desserts however Delicious Bakery and Sweet Treats made the same type of genre of desserts which are categorized as the same service which will deceived the buyers, this case can be associated with (Rowntree plc V Rollbits PTY Ltd, 1988)(Firth, Lea, Cornford, 2016). The case principles set out that the goods and services are not impossible to be mistaken to the public as it was generalized that desserts would reach the consumers in a manner that was closely related to the goods and services offered by the rightful trademark owner. Quoted from the question itself, it was said that the customers bought the pastries believing it was manufactured by Delicious Bakery.

Conclusion

This in conclusion justifies that Sweet Treats has committed trademark infringement as the burden of proof that weighs on Delicious Bakery has satisfied that the goods and the purpose of the sales are very closely similar, and both are selling confectionaries in the food section. Therefore, Delicious bakery could apply for an injunction and also demand damages from Sweet Treats for the confusion made that created a loss of business or sales upon Delicious Bakery.

Defenses

The defences for Sweet Treats could reproach by establishing that using the trademark for descriptive use. However, this justifies even more that one should not be able to register a trademark for one or under one of the absolute grounds for refusal and that is if the name or mark is used in a descriptive sense then it does not amount to infringement. This case can be cited by (R V Johnstone,2003) (Michaels, Norris 2010).