A trade mark is anything
which identifies products or services to distinguish them
from competing or related products. In other words, it is
something which denotes the commercial origin of a product
or service, who produced it, or who controls its production,
quality or design.
It can also be the way a product is presented and packaged,
such as Kodak film or Cadbury's chocolate. Trade marks can
be shapes, such as the Rolls Royce radiator grille, the Toblerone
chocolate bar, or the classic Mini automobile. They can also
be advertising or store designs.
Product & commercial get-up and design of this kind can
be protected by trade mark registration when used as a badge
of commercial origin or to brand or endorse products and/or
services of whatever kind, that is to say it is recognised
as a trade mark.
Trade mark registration is often the only effective means
of obtaining protection and controlling unauthorised use or
imitation by others, since:
- Action against piracy is faster and more persuasive when
based on trade mark registration, as effective rights are
already in place, and formal litigation may even be avoided
as a result.
- Whilst legal action for passing off based on prior use
of a trade mark is a possible alternative, this is generally
more costly and uncertain.
- Owning a prior trade mark registration or application
makes it easier and cheaper to oppose someone else's application
for the same or similar mark, and more likely to be successful;
- It is an obstacle to anybody registering the same or similar
mark in countries such as the UK, USA, Japan and Australia
where official objections are raised to later applications
that conflict;
- It has a deterrent effect and can be publicised by use
of e.g. ®, which may prevent unauthorised use or imitation
in the first place;
Copyright can be valuable, but it only protects against deliberate
copying and not coincidental similarity. Proving ownership
of copyright also tends to be more difficult and expensive
than relying on trade mark registration. Registered design
is also valuable but limited in duration.
Trade mark registration not only provides the protection
necessary to safeguard product and commercial get-up. It is
also an enabler of product licensing, and consequently helps
in improving the generation of revenue. It can additionally
assist in raising funds through e.g. securitisation, or help
to support the sale of a business.
If a company does not seek trade mark registration at an
early enough date, there is a danger that prior registration
by someone else could prevent it expanding its business or
that its marketing might even be halted altogether.
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