First: The Definition of Trademark:
It is everything that distinguishes a product, commodity or service from others, and it is names that have certain shapes or signatures, words, letters, numbers, drawings, symbols, addresses, stamps, seals, inscriptions and colors so that they take a special and distinctive shape, as well as any mixture of these elements.
Second: Objective conditions for the validity of the trademark:
1- The mark must have a distinctive characteristic:
The mark must have a subjective characteristic distinct from other marks placed on any identical or similar good or service, and the mark must take a special distinctive form that prevents confusion with other marks, so that it can be considered a trademark that have the legal protection prescribed for trademarks, including criminal protection from imitation.
2- The mark must be new:
It is not enough for the symbol to be distinctive in order to be suitable for use as a trademark, but the mark must also be new, meaning that it has not previously been used or registered by third parties within the territory of the country for products or services identical or similar to the trademark to be registered.
Brand imitation
It should also be noted that the mark should be new, that doesn’t mean that the mark is absolutely new in terms of the form of the mark and its innovation, but what is meant by new is the method of its use, the mark is not used on identical or similar goods or services within the territory of the country during the period prescribed for its protection, the condition that the mark is new is a restrictive condition in three ways, in terms of the type of product, in terms of place, in terms of time.
A- In terms of product type:
We said earlier that the main purpose of a trademark is to distinguish the goods or services allocated to it in the registration application from similar goods or services, and therefore the condition that the mark be new requires that the mark not be identical or similar to a trademark previously used on similar products.
Brand imitation
A trademark may be used previously on goods and services different from the one to be registered, for example, a trademark may be used for a perfume product that has already been used in a rice product, because the two commodities are clearly different which prevents the public and the consumer from falling into confusion of products.
B- In terms of location:
A trademark is considered new if it has not previously been used within the entire territory of the protected country.
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According to the principle of trademark territoriality, the use of a trademark outside the territory of the country does not lose the new character of a trademark when used in Jordan except in two cases:
The first case:
If the foreign trademark is registered in Jordan, then the trademark will not be registered because the foreign trademark is registered and protected in Jordan.
Second case:
If the foreign trademark is not registered in Jordan but enjoys international fame.
C- In terms of time:
A trademark is considered new even if another person has previously used it and then forfeited his right to it for any of the reasons for its lapse, such as not renewing the registration or leaving it.
As a result, a crossed out or abandoned mark may be used.
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3- The mark must be legitimate:
The legislator requires that the trademark, the symbols, and the constituent elements thereof be legitimate, so that the trademark may not take any form prohibited by law, or that is contrary to the system or public morals, so that the trademark or any element therein will not be registered if it contains the following:
A- Mark that violates public order or morals.
b- Public emblems, flags and other symbols of the country, other States, or regional or international organizations, as well as any imitation thereof.
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C- Signs identical or similar to symbols of a religious character.
d- The symbol of the Red Crescent, the Red Cross or other similar symbols.
Brand imitation
e- Images or logos of others unless they are approved for use.
f- Data related to honors degrees that the applicant does not prove to have obtained.
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g- Geographical signs and indications that may mislead or confuse the public.
h- Marks containing a fake or forged trade name.
Trademark Protection
Third: Elements of the crime of selling goods bearing a forged trademark in violation of the provisions of Article 37/1/c of the Trademarks Law:
– The court found that the legislator had requested several elements for the establishment of this crime, which are represented by four pillars, namely:
First:
The trademark must be owned by others and legally registered, as the legislator has granted the owner of the registered trademark which is legally registration under Article 25 of the Trademarks Law penal and civil protection to prevent and stop all forms of infringement on his trademark, and where the court found that the complainant’s mark (claiming the personal right) is registered with the Directorate of Industrial Property Protection at the Ministry of Industry and Trade, she thus has the right to file this complaint in order to protect her trademark.
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Second:
The goods bear a trademark whose use is considered a crime under Article 37 of the Trademarks Law, and this element is achieved against the defendants, as it was proved to the court that they sold the goods subject of the lawsuit, which was proven through the technical expertise report that they bear a forged mark for the trademark owned by the complainant and for the same type of goods he uses.
Imitation of trademark
Third:
To sell goods bearing the counterfeit trademark and this element is achieved against the defendants, as this was proved through the defendants’ sale of the goods subject of the lawsuit in the Jordanian market.
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Fourth:
The moral pillar based on the elements of knowing and will, in the defendant’s prior knowledge that these goods or products that he sells bear a forged trademark, and a free will and defect-free will, which tends to circulate goods with the intention of fraud, which leads to misleading and deceiving the public of the truth of the trademark and the owner of the trademark must prove this as a representative of the Public Prosecution.
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– In the law: Article 37 of the Trademarks Law stipulates the following:
1. Whoever commits with the intention of cheating one of the following acts shall be punished by imprisonment for a period of not less than three months and not exceeding one year or a fine of not less than one hundred dinars and not exceeding six thousand dinars, or by both penalties:
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a- Forge or imitate a trademark registered in accordance with the provisions of this Law in a manner that misleads the public or mark within the Kingdom a forged or counterfeit trademark on the same class of goods for which the trademark is registered.
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Imitation of trademark
Brand imitation
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Imitation of trademark
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