Although the construction industry is not necessarily an industry which most people would associate with intellectual property, regulations and laws concerning trademarks have a significant impact on the industry. Trademark laws can sometimes be overlooked by those within the construction industry; however, doing so would be an error because they do much to protect both business owners and customers.
A registered trademark is just as crucial to any successful construction business as raw materials, project planning, sales, or financial matters. However, before a trademark in the construction industry can be registered, the business and its owner applying for one must first comply with all existing trademark laws. They must therefore ensure that the trademark which is to be registered is for material which can legally be trademarked and does not infringe on any other entity’s intellectual property rights.
Items Which May Be Trademarked in the Construction Industry
According to most trademark laws, several items common to construction businesses can receive intellectual property protection through a trademark. The most common of these items are the logo and name of the business as well as certain product colours if the colours serve to distinguish the business’s products. In certain instances, commercial property layouts and building designs may also be trademarked.
According to the Nice Classification, raw materials used for construction can be trademarked if they are metallic. Class 6 of the Nice Classification lists “metal materials for building and construction” as one of its items. The entirety of Class 37 of the Nice Classification, meanwhile, pertains to construction services. Building construction, repair, and installation services can all be trademarked as they form Class 37.
Trademark Infringement and Buildings
After a building has been fully constructed, it may receive intellectual property protection through a trademark. Most trademark laws around the world allow the three-dimensional configuration of any building to be registered if the building is used in a way which functions as or provides the perception of a trademark. Should such a building receive trademark protection, an act of trademark infringement may occur if an external entity uses the trademarked building for commercial purposes or attempts to reproduce it in any way without the trademark owner’s approval.
When making a claim of trademark infringement of a trademarked building, several points must first be proven. There must be evidence that the alleged infringer used the trademarked building in conjunction with a sale or any other commercial reason. It also has to be shown that the trademarked building was used in a way which might confuse potential customers, meaning that it implies the use of a different trademark, as well as without the trademark owner’s consent. Most infringement claims regarding trademarked buildings are evaluated on a case-by-case basis.
Trademark Laws and Fraud in the Construction Industry
Many trademark laws were enacted to counter the effects of fraud. This is true even in the construction industry. Fraud in the construction industry may take the form of false statements of building quality or size. It can also be seen when a developer plan-stamps and claims the construction documents or architectural plans of another developer.
Trademark laws also guard customers of construction businesses from being the victim of product misrepresentation. Without trademark laws in place, there would be no mechanisms to prevent a construction business owner from implying that the business’s services and goods are associated with those of another business. Building designers, vendors, and architects must therefore conduct thorough trademark searches before proceeding to make claims in order to avoid committing any act of fraud.
Trademark Laws and Non-Traditional Construction Trademarks
It is often advisable for construction businesses to register non-traditional trademarks. Non-traditional trademarks are trademarks for items such as colours or combinations of colours, designs and design elements, and even sounds. If design elements to be protected are distinctive but not functional and therefore do not serve any utilitarian purpose, they can be protected through a copyright as well.
Certain architectural and decorative features within a building can also be used as trademarks. Once again, these features must be both non-functional and distinctive for such to be the case. Therefore, before deciding on any structural designs, those in charge of architectural and design-related aspects of the building ought to ensure that no one else’s intellectual property rights are being violated through the building’s construction.
This article is brought to you by Exy Intellectual Property Malaysia and Singapore.