A trade mark is a name, word, phrase, logo, symbol, design, image, or a combination of these. It is used by a business to uniquely identify itself and its products or services to consumers and distinguish itself from other businesses.
Trade mark registration, in most countries, is granted by the government. Registration provides an exclusive trading privilege to the owner of the mark on their goods or services.
In the past, trade mark registration was country specific and separate applications had to be made for each country of interest. It is now possible to register trademarks for specific groups of countries with one application.
Useful trade mark links:
- Intellectual Property Office UK
- World Intellectual Property Organization
Upon registration, you will need to supply; copies of the trade mark design, information on the products or services for which registration is sought, the name and address of the trade mark owner, and of course the fee.
In most cases, a trade mark is granted for ten years, and must be renewed for further periods of this thereafter.
The ™ symbol may be used when trade mark rights are claimed in relation to a mark, but the mark has not been registered with any government patent office. The ® symbol is used to indicate that the mark has been registered. The use of the ® symbol when the mark has not been registered is unlawful.
Proprietary rights in relation to a trade mark design may be established through the mark's actual use in the marketplace, even when no registration has been sought; however, some countries do not recognise this.
If a trade mark has been registered, then it is much easier for the owner to demonstrate its rights and to enforce these rights through an infringement action. Unauthorised use of a registered mark need not be intentional in order for infringement to occur, although damages in an infringement lawsuit will generally be greater if there was an intention to deceive.
It is interesting to note; if a company threatens to sue another for trade mark infringement, but does not have a genuine basis or intention to carry out that threat, or does not carry out the threat at all within a certain period, the threat may itself become a basis for legal action.