TRADEMARKS 101.
the core use of trademark is to help and ensure that consumers avoid confusion by distinguishing between goods and services, a trademark infringement claim may rise when ...
In Liberia, one would not be able to open a hotel and unilaterally name it “Royal Grand hotel”, this is because a hotel already exists and is trademarked under that name. It would also be impossible to name said hotel “Royal Grand motel”. This is because of trademarks, but what are trademarks?
A Trademark is an exclusive right to use a word, name, symbol or design to identify a business, product or service, so as to distinguish it from others. Seeing as consumers can associate quality or choice of goods to a brand name, trademarks help manufacturers to properly distinguish their products. Trademarks can only be used in commerce.
A trademark cannot be generic or descriptive i.e. A store that sells bananas cannot trademark the name “banana” as it is generic, same way a mechanic cannot trademark the phrase “mechanic shop” in relation to his shop because it is descriptive. However, a trademark can be suggestive or arbitrary. A Trademark is arbitrary when existing words are used in unexpected ways. That is, using words with a meaning that isn't associated with the product sold, for example using apple in relation to a laptop (apple is primarily related to fruits), or using Big Brother being used in relation to a TV show.
Seeing as the core use of trademark is to help and ensure that consumers avoid confusion by distinguishing between goods and services, a trademark infringement claim may rise when a product or service is similarly marked with an existing trademark. In 1976, Nestle, manufacturer of “Maggi seasoning cubes”, brought a trademark infringement claim against Gallina Blanca, manufacturer of “Mammy cubes”. Nestle argued that the similarity of names and packaging styles resulted into consumers buying Mammy when they intended to buy Maggi. The Liberian trial court ruled in favor of Nestle.
Additionally, the use of a trademarked name by using the pidgin version of the name is still a breach of trademark, as there is a likelihood of the consumer being confused as to the source of a product or service.
Trademarks fall under intellectual property. In Liberia, intellectual property is governed by the intellectual property act of 2016. Trademarks have to be registered, and the law sets factors that would make a trademark un-registrable. Some of these factors include; marks devoid of any distinctive character, marks that consists exclusively of a sign or indication that has become customary in current language or in the bonafide established practices of the trade to designate goods or services, or marks contrary to public order or morality; however, the nature of the goods or services to which a mark is to be applied shall not be an obstacle to registration of the mark
As per the law one cannot trademark a sign identical or confusingly similar to a well-known distinctive sign, where the trademark use of said sign would indicate a connection between goods or services, and the owner or the reputation of the well-known distinctive sign is likely to be damaged.
The intellectual property act of 2016 lays down factors in determining whether a distinctive sign is well known. In determining whether a distinctive sign is well-known, it doesn’t matter if the sign is registered, has been used or is being used in trade in the Liberia or abroad. It also doesn’t matter if the sign is well known abroad, or is known to the general public in Liberia.
However, when deciding an action relating to the unauthorized use of a well-known distinctive sign, authority would take into account the good or bad faith of the parties in the adoption and use of the sign.
It is also worthy to note that trademarks are usually tied to their geographical locations i.e a Liberian registered trademark only applies in Liberia. However, the Madrid protocol and the World International Intellectual Property Office makes it possible for one to register his/her trademark across different countries. Presently, Liberia is a signee and member to the Madrid protocol and the World International Intellectual Property Office respectively.
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