The term ‘ghost mark’ is given in reference to a trademark that is very closely simulated to another ordinary word that is used commercially and in the course of trade. The laws surrounding ghost marks and trademark laws are considered complex to understand without the guidance of a professional advisor. It is therefore advisable to enlist the professional services of an intellectual property attorney or consultancy firm when seeking to understand the concept and practicalities of ghost marks.
Ghost mark explained
A ghost mark by definition is a trademark that is created with no real or genuine intention to be used commercially as a trademark. The sole intention of it is to closely simulate another word that is used in commercial trading. This is a tactical measure adopted by many in a bid to effectively monopolize a word and prevent third parties and competitors from using it.
Owners of ghost marks have the right to prevent others from using and registering words or phrases that are similar to the mark, and this is an effective, yet unjust, strategy when companies wish to monopolize the market. Trademark law clearly specifies that a mark cannot be registered or used commercially where it bares a confusingly similar resemblance to another registered mark. The test to assess the similarity of two marks is whether it would be reasonable to conclude that the public would be confused between the two marks.
Ghost marks cannot be created for the intention to manipulate the market and prevent others from using similar words or phrases. Although ghost marks are used, it is an unjust and discriminatory tactic. Cases of infringement that include ghost marks will typically find in favor of the defendant where the plaintiff suing for trademark infringement has performed insubstantial efforts to use their ‘ghost mark’ commercially and in the course of trade. This means that where the owner of a ghost mark has clearly created it for the sole intention to prevent others using it, and who did not use the ghost mark in the course of trade or in a commercial capacity, the court will find in favor of the defendant.
It is not unusual for owners to employ the use of ghost marks for the purpose of protecting their mark despite having no real desire to use it. A frequent use of ghost marks is where a term cannot be registered due to its level of descriptiveness. In this situation, an owner may seek to register a similar mark (ghost mark) to create a de facto monopoly over said unregistrable mark.
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