A trade mark is a unique and distinctive logo or sign that represents some kind of individual, legal entity or business organization. A trade mark is used to help allow consumers to indentify the source of products and/or services. There are many rules and laws that are involved when trying to trade mark your logo or slogan. Those who want to trade mark something will need to find a trade marks lawyer in Costa Rica. A trade marks lawyer in Costa Rica will be able to help you trade mark your intellectual property such as a name, phrase, word, symbol, logo, image, design or any combination of these elements.

A trade marks lawyer in Costa Rica will be able to help you during the entire process. There are many times when a trade marks lawyer in Costa Rica will have to help the owner of a trademark with many legal proceeding for trademark infringement. These legal proceedings are used to try and stop unauthorized use of any of the individual or company’s trademark. It is possible for the trade marks lawyer in Costa Rica to file suit again anyone who is violating trademark infringement. There are many rules and regulations that go along with trademarks and trademark infringement.

Since there are so many rules and regulations it is extremely smart for anyone that uses trademarks to hire a trade marks lawyer in Costa Rica. You never know when trade mark infringement is going to occur therefore it is always a good idea to have a lawyer handy when something like this happens. Those who are business owners dealing with tax laws will want to consider hiring a tax law consultant in Costa Rica. It is extremely important to choose a tax law consultant that you feel comfortable working with. This will allow you to be able to communicate comfortable with your lawyer.

Individuals can also take advantage of a tax law consultant in Costa Rica. Individuals often hire a tax law consultant in Costa Rica to help them minimized taxation. This allows the individual to get the same benefit as they would if they would know how to handle the complicated financial situation themselves without having to learn the tax laws. It is really just much easier and quicker to hire a tax law consultant in Costa Rica than it would be to try and learn all of the rules and laws and try to minimize their own taxation. Why do it yourself when you can pay somebody a small sum of money to do the work for you?

There are many things that should be taken into consideration when trying to select a tax law consultant in Costa Rica. For starters, you will want to make sure that your tax law consultant in Costa Rica has the experience and skills needed to successful work on your case. It is also important to find a tax law consultant that you feel comfortable with. Choose one that is uncomfortable will make it difficult for you to chat with the individual and ask them question or discuss your problems with them. You should check the tax consultant’s history by asking for references. This will allow you to see how well they worked for their services work for their previous clients.

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When selecting a domain name in the UK, it is primarily registered trade mark rights that dictate whether or not the domain name is available for use in trade and commerce, regardless of whether the domain name is available for registration. Whether or not the use of the domain name infringes a UK trade mark trade mark is another matter.

Suppose the same trade mark is owned and used by independent companies in the United States and the United Kingdom. The United States company might have a website, for example easyfashion.com, which may feature the trade mark “easy fashion”. Does the appearance of the trade mark on the United States site infringe the trade mark registered in the United Kingdom?

Given the world wide accessibility of internet sites and the inevitability that, to return to the above example, the United States website will be viewed by internet users in the United Kingdom, courts have had to consider the question of whether the use of a trade mark on a foreign website infringes the trade mark registered in the United Kingdom.

The starting point for United Kingdom courts is the proposition that infringement in the United Kingdom requires the use of the sign in the course of trade in relation to goods or services in the United Kingdom.

Whether or not a foreign website uses a sign in the course of trade in the United Kingdom is a question of fact that a court must determine having regard to all the circumstances.

In the case of 1-800 Flowers Inc v Phonenames Ltd [2002] FSR 12 CA, Buxton LJ rejected the notion that simply placing a mark on a foreign website without more would constitute use in the course of trade in the United Kingdom.

Lord Justice Buxton, in reasoning that something more was required to constitute the requisite use, said:

"the very idea of “use” within a certain area would seem to require some active step in that area on the part of the user that goes beyond providing facilities that enable others to bring the mark into the area. Of course, if persons in the United Kingdom seek the mark on the Internet in response to direct encouragement or advertisement by the owner, the position may be different; but in such case the advertisement or encouragement in itself is likely to suffice to establish the necessary use"

An “active step” which goes beyond the mere placing of a mark on a website and which would result in a finding of use in the course of trade in the United Kingdom would include solicitation of customers and orders in the United Kingdom by the foreign website.

Courts will also look at whether the foreign website has an established trade and customer base in the United Kingdom. Whether or not a foreign website does have a United Kingdom customer base will not of itself determine the issue, but is certainly a relevant factor a court will consider in making its judgment.

Ultimately, the appearance of a mark on a foreign website will only be considered as use in the course of trade in the United Kingdom if, objectively speaking, the website aims at customers in the United Kingdom. Factors to be considered by courts when deciding this issue include whether there is any active solicitation of United Kingdom customers, the extent of the website’s customer base and trade in the United Kingdom and whether any disclaimers or statements exist on the foreign website which prevent sales in the United Kingdom.

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As more and more companies are seeking to distinguish their products and services in the marketplace by registering their names, slogans or designs as trade-marks, many companies which do not retain a Canadian lawyer or trade-mark agent often make fundamental mistakes.  Among the most common mistakes are the following.

1.    A Company Name is not a Trade-mark.

A company name is the legal name under which a company carries on business.  However, unless the company name is used as a trade-mark, it cannot be registered under the Canadian Trade-marks Act.  For example:

•    Acme Insurance Ltd. markets life insurance under “Goodlife Insurance”.  “Acme Insurance Ltd.” is the company name, “GoodLife Insurance” the trade-mark.  “Acme Insurance Ltd.” is not used as a trade-mark, “GoodLife Insurance” is.

•    Acme Insurance Ltd. markets life insurance under “Acme Life”.  “Acme” is part of its company name, but it is also used as a trade-mark to distinguish its insurance policies from those of other insurance providers. 

The important point here is that the registration of a company and the registration a trade-mark are two distinct processes.  Federal and provincial company offices do not search the Trade-marks Office database to determine if a proposed company name is a registered trade-mark; nor does the Trade-marks Office search federal and provincial company offices to determine if a proposed trade-mark is registered as a company name.  The two processes are unrelated, and the trade-mark must be registered separately.

2.    There’s no Requirement to use a Trade-mark before Registering.

Many companies believe that they must commence use of their trade-mark before registering it.  In Canada, as in many other countries, trade-marks may be filed on the basis of “intention to use”.  An application which is filed on this basis must specify the products and services that the company intends to use in association with the trade-mark.  Once the application has been filed, the company generally has three (3) years from the date of filing to file a Declaration of Use confirming the use of the trade-mark in association with the specified wares and services.  The Declaration of Use may be filed anytime within the three (3) year period, but must not include any products and services that have not been used in association with the trade-mark.     

3.    Search before Using a Trade-mark.

It is always advisable to conduct a trade-mark search before commencing use of a trade-mark.  This will ensure that the trade-mark does not infringe another trade-mark and will avoid the wasted expense of such things as advertising and labeling.  

A trade-mark search may be conducted through the Canadian Intellectual Property Office Trade-marks database by inserting the trade-mark in the search text box and selecting the appropriate search field.  If the search does not reveal an exact match, a secondary search should be conducted based on such factors as the elements of the trade-mark (where, for example, the trade-mark comprises more than one word), different spellings of the word(s) comprising the trade-mark and the sound of the trade-mark.  This is referred to as a “comprehensive search” and is advisable to ensure that the trade-mark is not confusing with a registered trade-mark and therefore unregistrable.

4.    Some Trade-marks are not Registrable. 

Not all trade-marks are registrable.  Among the trade-marks that are not registrable under the Canadian Trade-marks Act are:

•    trade-marks that are clearly descriptive of the character or quality of the products or services,

•    trade-marks that are deceptively misdescriptive of the character or quality of the products or services,

•    trade-marks that are clearly descriptive or deceptively misdescriptive of the origin of the products or services,

•    trade-marks that are the name of the products or services, and

•    trade-marks that are confusing with a registered trade-mark.

There are a number of tests which have been developed by the courts which are employed by the Trade-marks Office in determining whether a trade-mark is registrable.  In general terms, however, where an application for registration of a trade-mark falls within one of these categories, the trade-mark will not be registrable.

5.    International Classifications Don’t Apply. 

Products and services which are used in association with a trade-mark must be described in ordinary commercial terms.  In many countries such as the United States this is done by using International Trade-mark Classes.  The International Trade-mark Classes are categorized into 45 classes, Classes 1-34 relating to products and Classes 35-45 to services.  Canada does not use this system and therefore trade-marks must be described in ordinary commercial terms for Canadian filing purposes.

For example, Class 32 refers to “light beverages” which are enumerated as: “beers; mineral and aerated waters and other non-alcoholic drinks; fruit drinks and fruit juices; syrups and other preparations for making beverages”.  For Canadian filing purposes, the wares “non-alcoholic beverages” require further specification, for example carbonated drinks, colas, energy drinks, sports drinks, drinking water, fruit-based soft drinks, fruit juices, hot chocolate, milk, non-dairy soy,  coffee or tea.

6.    Copyright may reside in Trade-marks and must be Acquired.

Where a trade-mark is in the form of a design, the design will be subject to copyright protection, as well as trade-mark protection.  If a trade-mark owner retains a graphic artist to develop and design a trade-mark, the trade-mark owner should obtain all rights to the design, including the ability to make changes to the design.  This is generally done by means of a simple contract known as an “Assignment”.

In Canada, copyright need not be registered as rights to the design arise at the time of creation, which provides the copyright owner with remedies for copyright infringement at common law. These remedies are additional to the remedies that the trade-mark owner will have under the Canadian Trade-marks Act.

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The problem with trade and service marks on the Internet is that trademarks are territorial (i.e. they are registered for specific areas/countries) whereas the internet, by definition, is global and almost “anti-territorial”. This leads to major complications again beyond the scope of this handout. Just be aware of the following:

Class of Goods and Services
Trade & service marks are registered according to classes of goods or services, so that usually if trademark is registered in an entirely different class from your area of interest, it is not a registered trademark infringement to use the same name in another field. There may be other rights that protect the other name holder including “passing off” so be careful and never use a trademark without getting expert advice in advance.
Unjustfied Threats of Legal Proceedings
Do not threaten legal action for breach of your own trademark without being sure you have a right otherwise the potential defendant may elect to sue you for harassment (a “threats action”) and claim damages for the damage caused to them. This option was inserted into the Trade Marks Act in the 1990s to prevent overzealous attempts to enforce trade mark rights and stop trade mark owners from participating in heavy-handed trading tactics.
Descriptive Trade Marks and Registrability
Not all names are registrable as a trademark – words that are descriptive or relate to a geographic area, for example. However, if you qualify, it is often well worth while registering your business name and product names as trademarks as it gives you much greater power over others using a similar or same name. If you carry out significant amounts of business outside the UK, you may need to select other key jurisdictions in which to register at the same time – if you can afford it, always use a trademark attorney. For further information on checking existing registrations or making new applications, visit the Patent & Design Office’s excellent web site: www.patent.gov.uk.

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