Trade Marks

Even those who do not know what a trade mark is, are continually bombarded every day with examples. Trade marks are what distinguishes one manufacturer’s products or services from others. They are the very basis by which you are enticed to buy one brand of coffee over another, or drive one make of car in preference to the others.

Trade Marks can take a number of forms. In simple terms they can be almost any feature which can distinguish one manufacturer’s products from another. Most people are familiar with brand names and logos, but do not always realise that in their broadest sense trade marks may also include colours, applied features (e.g. the Adidas stripes), shape (remember the old fashioned Coke bottle), as well as even sounds and smells.

Different countries provide different levels of trade mark protection by registration. This increases the owner’s rights over mere common law rights arising from use (where they exist).

Registration also establishes title on the public Trade Marks register. This is different from the Companies Register – a presence on this alternate register conferring no rights of title or use of a trade mark.

As goodwill and reputation accrue in a business’s trade marks, it is advisable to secure TM registration as soon as possible.

In Practice

Trade Marks ultimately become the most valuable asset of a successful business. They are valuable in terms of actual worth, but this may be realised through the ability to licence others to use your trade mark.

While rights to Trade Marks can be acquired by use alone, such rights are often relatively weak until such time as a substantial reputation has been achieved. Registration bypasses this vulnerable period and, considering the eventual value of a trade mark, is well advised.

Trade Marks are very useful as a supplementary form of protection for new product. If the product is being introduced under an existing trade mark with considerable reputation, introduction and market acceptance may be accelerated. Even if a new mark is being used, once established that new mark can be used to springboard other products into the market.

Trade Marks are also useful where no other forms of IP protection exist, such as for long known products or service industries. Here, use and protection of the trade marks in which public recognition and reputation lies, can provide a useful commercial advantage over other traders.

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