Trade Marks

A trade mark is a sign used to distinguish a particular trader’s goods or services from those of other traders.  As any marketing person will tell you, the selection of an appropriate trade mark can be pivotal to the success of a business venture.  As a trademark is used commercially, it attracts goodwill and builds a reputation and its intrinsic value increases.  The power of a good brand in the market place is readily apparent if you consider any one of the well-known trade marks and the significant sales and price premiums that are associated with the goods or services sold under that trade mark.

A trade mark can be a word, a logo, a signature, one or more letters or numbers or any combination of these.  Additional forms of registrable trade marks include scents, colours, sounds, aspects of packaging and the shape of a product. Due to the significant sales that a well known trade mark can generate, traders can be sorely tempted to use trade marks which are similar or identical to those used by their competitors.  In such a situation, it may be possible to take legal action to stop such misappropriation through the law of passing off or under applicable unfair competition legislation.  However, this type of legal action entails a significant evidentiary burden and can be very expensive.  A preferable route for protecting trade mark rights is to seek a trade mark registration.  Once granted, a trade mark registration can be used to prevent others from using a substantially identical or deceptively similar trade mark in relation to the goods and services for which the trademark is registered.  Legal action for trade mark infringement is more straight forward and less expensive as the trade mark owner does not have to prove an established a reputation in the trade mark or that any customers have been confused.

Unlike patents, there is no limit to the length of time for which a trademark registration can be renewed. This means that this type of business asset can continue to appreciate indefinitely.