A trade mark is a sign which can distinguish your goods and services from those of other traders. A sign includes, for example, words, logos, pictures or a combination of these. You can use your trade mark as a marketing tool so that customers can recognise your products or services. As such, it can be a very valuable asset for your business.
To be distinctive it must by its very nature be able to distinguish goods and services. A good example would be the word “apple”. While “Apple” is a very distinctive trademark for a computer, because it has absolutely nothing to do with computers, it would not be distinctive for actual apples. In other words, someone who grows and sells them could not register the word ‘apple’ as a trademark and protect it, because his competitors have to be able to use the word to describe their own goods.
In general terms a trademark is not distinctive if it is descriptive. It is descriptive if it describes the nature or identity of the goods or services for which it is used.
A deceptive trademark would be one that says that the goods for which it is used have certain qualities when they don’t. An example would be the trademark “Real Leather” for goods that are not made of genuine leather.
If you have a registered mark, you have the right to use your mark on the goods and services in the classes for which it is registered. You also have the legal right to take action against anyone who uses your mark or a similar mark on the same, or similar goods and services to those that are set out in the registration.
WHY REGISTER A TRADE MARK?
Some of the benefits of registering trademarks include the following:
- Guarantee that consumers recognize products;
- Enable companies to differentiate their products;
- They are a marketing instrument and enable a company’s image and reputation to be projected;
- They can be licensed and provide a direct source of revenue through royalties (factories in India and China);
- They are a determining factor in franchise agreements (Wendy’s);
- They can be important commercial assets;
- They encourage companies to invest to maintain and improve product quality.