Trademarks: Out-sourcing manufacturing of goods

Does Trademarks with current trents to out-sourcing manufacturing of goods indicate the origin of the goods?

Trade Marks are distinctive signs which were primarily introduced to operate as indicators of the trade source from which the goods or services originate. In other words trademarks could be considered to be a short way of communicating information to consumers about the market details of a product such as origin, prices, and quality. The consumer is entitled to have complete and correct information about the market details of the product in order to be able to make an informed choice between the increased variety of choice of a product. This requires effective protection of the trademarks against any infringement.

Originally, establishing Trade Mark (TM) infringement was dependent solely on whether there was confusion as to the origin of a TM since it was considered that the primary function of TM, if not the only one, was to identify the origin of the products or services. With the passage of time however, it was acknowledged that TMs do not serve only that purpose but they also function as guarantee of quality and as an advertising tool. This therefore suggests that TM protection should focus on these functions as well and that the finding of TM infringement should not be confined to situations where there is confusion as to the origin of a specific product.

Through advertising, TMs obtain reputation and any protection possibly given to the advertising function is actually conferred to the TM with reputation, which under section 10(3) of the Trade Mark Act 1994, (TMA) will be infringed if the use of a similar sign lead to the weakening of the distinctiveness or reputation of the sign. This is considered to

be the requirement of dilution, which will be applied in cases of famous TMs and in these cases confusion as to origin will not be required. Cornish states, when there is a discussion about the proper scope for the legal protection of TMs their functions should be the starting point.As will be shown throughout the essay, dilution as a standard for finding infringement in cases of famous TMs seems to be less stringent than the ‘likely of confusion requirement’ and its application indicates the importance of protecting the advertising function of TM.


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