The definition given to trademarks under Maltese & EC law

Abstract

The legal protection of trademarks constitutes an important and crucial factor within the economic reality of the market. The reason for such affirmation lies in the fact that the image of a product which is perceived by the consumer is of paramount importance for a trader to become efficient on the market and hence be successful. Such an image is portrayed through the signs and marks which are attached to ones products, which signs are meant to serve, and will so serve following the use that is made of such signs, as an indication of the origin of the product such that the consumer would be able, by virtue of the mark used, to identify the undertaking from which the product originate. This ultimately constitutes the essential function of a trademark. Hence, a system of protection is needed in order for this scenario to verify itself. The primary step within such a system of protection is that of laying down the requirements which have to be satisfied in order for a sign to be considered a trademark. Three elements have to be fulfilled, these being that it must be a sign; which is capable of being represented graphically; and which is capable of distinguishing the goods or services of one undertaking from those of other undertakings. Notwithstanding the fact that all of these three elements are actually satisfied, and consequently the sign be considered a trademark for the purposes of the law, it doesn't necessarily mean that such trademark will be accepted for registration, which is the ultimate objective of a trade in attaching a trademark to his products since through a registered trademark certain rights are accorded, thus enduring protection. Accordingly, the trademark will have to overcome various other hurdles, being the grounds for refusal of registration, amongst which is the ground of distinctiveness - failure to overcome these grounds will lead to !he trademark being refused registration. Nevertheless, contrary to the requirements of the definition, a trademark might come to satisfy the conditions laid down in the grounds for refusal, and consequently once satisfied registration will he accepted.