A trade mark is a sign such as a word, name or logo which identifies a product or service as originating from a particular source (such as a particular person or company). Officially registered trade marks allow the owner of the registration to exclude others from using the trade mark in relation to similar goods and services without authorisation.
Clearly, therefore, when choosing a trade mark, it is important to ensure that no other party has earlier rights in an identical or similar trade mark in relation to identical or similar goods. Searching of the trade marks register is an important step in establishing whether a trade mark is available for use. However, it should be noted that trade mark rights may exist on the basis use of, and or reputation in, a trade mark.
A trade mark provides a valuable way of distinguishing your goods or services from those of other businesses. In order to serve this function a trade mark must be ‘distinctive’. Therefore, it is much easier to register a trade mark which does not directly describe the goods or services and which does not consist only of a sign which other traders may legitimately need to use.
Accordingly, when choosing a word trade mark, it is generally important to choose a word or phrase which does not consist only of:
- the name of the product;
- a description of the quality, quantity, intended purpose, value, geographical origin or some other characteristics of the goods or services; or
- a common surname.
Of course, deceptive or misleading words or phrases should also be avoided.
The information set out above is intended to be only a very brief introduction to some important features of trade mark protection, and should not be considered a full explanation or a basis for commercial decisions. We would be happy to discuss trade mark protection, and the procedures and costs involved, in more detail.