Trademarks and Their Protection

What is a Trademark?
A trademark is something that distinguishes your product from others in the market place. A trademark can be:

  • A word or name (e.g. Coca Cola)
  • A logo or symbol (e.g. the four rings in an Audi car)
  • A design (e.g. the tick for Nike or the Coca Cola classic bottle)
  • A slogan (e.g. ‘Just Do It’ for Nike)

It can also be a letter, number, sound, smell, shape, picture or type of packaging. A trademark can be a combination of all these things. The objective of a trademark is to allow the business that owns the trademark to distinguish itself, its products and services from others.

In the USA, protection is provided to registered trade marks through the Trademarks Act ("the Act"). The term "trademark" is defined in the Act as meaning "any sign capable of being represented graphically and distinguishing the goods or services of one person from those of another person".

A "sign" is defined in the Act as including "a brand, colour, device, heading, label, letter, name, numeral, shape, signature, smell, sound, taste, ticket, or word; and any combination of signs". A trademark is often referred to as a "logo", "brand" or "brand name".

What does a Trademark Give the Owner?
A registered trademark gives the owner the exclusive legal right to use, license or sell their products within the country in which the trademark has been registered. Therefore, a trademark gives the business exclusive rights. If the exclusive rights are infringed in any way, the owner of a trademark can lawfully prosecute any of the parties causing the infringement.

There are some names, marks or letters that are not available to some businesses when they try to register a trademark. This is because it is similar to, or the same type of sign or symbol already registered to someone else.

You cannot register a trademark for a generic type name such as ‘swimming’ or ‘river’ etc. You cannot register a trademark that is misleading to the public regarding the nature of your products and services. Also, common names and geographic names are not acceptable.

A good trademark can give the image of quality and reliability. This is the reason why some companies have put a substantial value on their trademarks - because of the type of service and products they supply. Used correctly, it is a great marketing tool, and the option for a business to trademark something they believe is of value, should not be taken lightly. While the registration of a trademark is not compulsory, an astute business owner should see it as an advantage to the business.

Service Marks not like Trademarks
A service mark is the same as a trademark except that it distinguishes services rather than goods from other services on the marketplace. The same rules and regulations apply to a service mark as they do to a trademark.

Who can Qualify for a Trademark?
Anyone who claims to be the owner of a trademark can apply for registration of the trademark. It could be an individual, company, partners, or an association. You can apply for joint ownership or an association. You can apply jointly to own a trademark if more than one person owns it.

You an only use the trademark in relation to the goods or services included in the application. If the trademark is to be used by an entity about to be formed, the application for the trademark will have to assign that trademark to the body concerned.