A trademark (Commonwealth English: trade mark) is conventionally a distinctive sign of some kind, whether that sign comprises a name,
word, phrase, symbol, design, picture, styling or a combination of one or more of these elements. A trademark is used by a business
to identify itself and its products or services to consumers, and to set itself and its products or services apart from other businesses.
The essential function of a trademark is to uniquely identify the commerical source or origin of products or services, such that a trademark,
properly called, is used to 'indicate source' or act as a 'badge of origin'. The use of a trademark in this way is known as 'trademark use'
and a trademark owner seeks to enforce its rights or interests in a trademark by preventing unauthorised trademark use.
As any sign which is capable of performing the essential trademark function may qualify as a trademark, the trademark concept extends
to include a range of unconventional signs such as shapes (ie. three-dimensional marks), sounds, smells, moving images (eg. signs denoting
movement, motion or animation), taste, and perhaps even texture. However, the extent to which unconventional trademarks can be protected
or even recognised varies considerably from country to country (1).
Trademark rights, such as the right to exclusive use of a trademark, generally derive only through use (ie. actual use in the marketplace)
or registration (ie. filing an application and obtaining registration through the government trade marks office) in a particular jurisdiction.
Such rights will only apply in that jurisdiction, a quality which is sometimes known as ‘territoriality’. However, there are a range of
international trademark laws and systems which facilitate the protection of trademarks around the world.
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