Drawing these distinctions is necessary, but often challenging for
the courts and lawyers, especially in jurisdictions where patents
and copyrights pass into the public domain, depending on the
jurisdiction. Unlike patents and copyrights, which in theory are
granted for one-off fixed terms, trademarks remain valid as long as
the owner actively uses and defends them and maintains their
registrations with the competent authorities. This often involves
payment of a periodic renewal fee.
As a trademark must be used to maintain rights in relation to that
mark, a trademark can be 'abandoned' or its registration can be
cancelled or revoked if the mark is not continuously used. By
comparison, patents and copyrights cannot be 'abandoned' and a
patent holder or copyright owner can generally enforce their rights
without taking any particular action to maintain the patent or
copyright. Additionally, patent holders and copyright owners may
not necessarily need to actively police their rights. However, a
failure to bring a timely infringement suit or action against a
known infringer may give the defendant a defense of implied consent
or estoppel when suit is finally brought.
Like patents and copyrights, trademarks can be bought, sold, and
transferred from one company or another. Unlike patents and
copyrights, trademarks may not remain intact through this process.
Where trademarks have been acquired for the purpose of marketing
generic (non-distinctive) products, courts have refused to enforce
Further information concerning Trade Mark or Brand, please freely
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