What Is A Trade Mark?

• Published date: 15 November 2021
• Subject Matter: Intellectual Property, Trademark
• Law Firm: Dehns
• Author: Dehns &nbsp

A Trade Mark is a sign which serves to distinguish the goods or services of one trader from those of another. Registering a trade mark gives the owner the exclusive right to use the mark in relation to specified goods or services. A trade mark can be a very valuable asset to a business.

Trade marks are an essential part of doing business. Businesses can use trade marks in the development of their own unique 'brand image', allowing consumers to identify the source of the products and services of interest to them.

What Trade Marks can I protect?

Usually trade marks are words, numerals, graphic designs, or a combination of any of these. However, it is also possible for trade marks to consist of the shape of goods or their packaging, colours or even sounds (e.g. advertising jingles). Whatever its nature, to be registrable a trade mark must generally be distinctive and not descriptive. For example, it is difficult to register merely laudatory words, common geographical names, common surnames or single colours, at least until such time as it can be shown that these have become distinctive for the goods/services through use.

What type of protection is available?

Wherever possible, it is advisable for businesses to register their trade marks. In general, a trade mark registration is infringed by the unauthorised use of an identical or similar mark by a person in the course of trade in relation to goods or services which are identical or similar to those for which the mark is registered. To some extent unregistered trade marks may be protected by other laws (e.g. in the UK, the law of passing off). However, rights in such unregistered marks are more difficult to enforce because of the need to show that the public is likely to be deceived by the other party's use of the mark. In contrast, the first user of a mark which is registered has an absolute monopoly in its use in trade.

It is up to the proprietor to enforce his rights in his (registered or unregistered) trade mark.

How do I register my Trade Mark?

In the United Kingdom, the official body responsible for the official examination and registration of trade marks is the Trade Marks Registry, which is part of the Patent Office, a Government agency. To seek registration of a trade mark, an application is filed at the Registry in the prescribed form, identifying the goods and services in respect of which the applicant wishes to register the mark. The Registry then examines the application to assess whether it...