What is a trademark?
A trademark is a sign that distinguishes your products or services from those of your competitors. Registering your trademark in the CaribIE Register at BOIP gives you the exclusive right to use the trademark for certain goods (products) and services within the Caribbean Netherlands, for a renewable period of ten years.
What form can a trademark take?
The legal definition of a trademark is very broad: trademarks are all signs which distinguish a company's goods (products) or services. This broad definition as "all signs" means that more distinguishing signs can be protected as trademarks than you perhaps may first have thought. The following are a few examples:
1. Word marks: The name under which a product or service is marketed.
2. Device marks: Logos and labels as well as, for example, words in a particular font or presented in a particular layout (a logo which includes a name).
3. Shape marks: In certain cases, the shape of a product or packaging can be a trademark, e.g. an unusual perfume bottle.
4. Colour marks: In exceptional cases, even a single colour or a combination of colours can be a trademark. This is the case when the public recognises a certain product or service by the colour. A well-known example are the blue gas cylinders used for camping.
5. Sound marks: An advertising jingle is sometimes so well known that when people hear it they immediately know what it refers to. In such cases, the sound may be regarded as a trademark and eligible for registration (in the form of a musical stave).
In practice, 99% of registered trademarks fall in categories 1 (word marks) or 2 (device marks). However, it is certainly not the case that all signs can become trademarks.
What signs cannot be trademarks?
Not all signs can be trademarks. There are a number of legal reasons why a sign cannot be a trademark. A court can decide that a previously registered trademark is, in fact, invalid for one of these reasons and declare the registration to be null and void. The main reasons for a trademark to be deemed invalid, the so-called grounds of exclusion are listed below.
1. The sign is not distinctive. This is the most common ground for exclusion and, in fact, flows directly from the very definition of a trademark. A trademark is a sign which distinguishes a company's goods or services from those of others. Therefore, a sign which is unable to do that is not a trademark. Here are some examples of signs which lack distinctive character. Here are some examples of signs which lack distinctive character.
- BIOMILD: for organically-produced, mild yoghurt
- HAPPY HOLIDAYS: for organisation of travel
- NEW ENERGY: for the supply and distribution of energy such as electricity, gas and water.
2. The sign is deceptive: A logo clearly depicting, for example, coffee cannot be registered and used for something else (such as tea or sedatives) because this could mislead the public.
3. A number of specific grounds for exclusion apply to shape marks. These are intended to avoid any overlap with other intellectual property rights (such as design law and patent law). Therefore, the shape of, for example, a chair or a lamp is more likely to be regarded as a design rather than a shape trademark. A shape cannot be a trademark if it (1) is determined by the nature of the goods themselves, (2) confers substantial value to the goods, or (3) is necessary to obtain a technical result.
4. The filed trademark consists of flags, arms and other official emblems of states or international organisations which are registered pursuant to Article 6 ter of the Paris Convention. Such trademarks can only be registered with the permission of the relevant state or organisation.
5. The trademark is contrary to public policy or accepted principles of morality. This is very rare ground of exclusion in practice.
In accordance with the trademark law of the Caribbean Netherlands, these signs will not be rejected during the application procedure. However, you must bear in mind that registration of such a trademark may be contested in court at a later point in time.
Individual or collective trademark
An individual trademark is one that distinguishes the products or services of one company from those of others. 99% of trademarks are individual trademarks.
A collective trademark is a trademark that distinguishes one or more characteristics shared by products or services. The owner of a collective trademark does not use the trademark himself but rather oversees the use of the trademark by others, who must meet certain criteria in order to be allowed to use it. These criteria must be laid down in the regulations for use and oversight of the trademark, which are submitted with the trademark application when it is filed. A well-known example of a collective trademark is the Woolmark symbol.