Before you adopt a brand name or, in essence, a trade mark for your product or service offering it is important to understand the meaning of a trade mark, the different types of trade marks and what your legal rights are once it you have managed to secure registration for your trade mark.
What Is a Trademark?
A trade mark is a form of intellectual property and typically includes a sign capable of being represented graphically (such as a device, name, signature, word, letter, numeral, shape, configuration, pattern, ornamentation, colour, container for goods or any combination of the aforementioned. In order for such a sign to qualify for registration it must be capable of identifying products / services of a particular source from those of others. In other words, it must be distinguishable from other registered trade marks.
Once registered the owner of the trade mark will be able to prevent its competitors from using or copying the trade mark. Since, competitors tend to imitate intellectual property, such as brand names, logos, slogans , that stand out, it’s important to take preventative measures in order to protect trade marks or, in effect, brand name. It is also worth noting that a trade mark is considered to be an asset and will, over time, accrue a value which will, of course, be taken into consideration in the event of a company take-over or buyout.
Different Types of Trademarks
As mentioned, various recognisable signs will qualify for registration as a trade mark such as a device, name, signature, word, letter, numeral, shape, configuration, pattern, ornamentation, colour, container for goods or any combination of the aforementioned
Trademark on Products or Services
As it suggests, you can secure a trade mark for either product or service offerings, provided that it meets the registrability criteria (i.e. it is capable of distinguishing) and does not imitate a trade mark of a competitor (i.e. it is available for registration).
Trademark on Company Name
Just because your company has been registered, doesn’t mean that your trade mark or brand name enjoys protection on the trade marks register. It is important to note that there are separate registers for company names and trade marks and it is advisable to protect the name of your company as a trade mark in order to afford you the best scope of protection and an easily enforceable remedy against third parties who imitates the name of your product / service offering.
Intellectual Property Trademarks
A trade mark is a form of intellectual property and can be legally protected . A trade mark typically includes designs, logos, phrases, slogans and names.
A trade mark must not be confused with other forms of intellectual property such as Copyright which, for example, protects written, audible or artistic works such as novels, lyrics, drawings, a design which protects the unique shape of a product or a patent which protects new and invented products, methods or formulas.
How to Register a Trade Mark in South Africa
The trade mark will be registered in terms of the South Africa Trademarks Act No 194. Here is a step by step account of what you can expect when registering a trademark:
Submit your intended trademark
You need to find a law firm that specialises in intellectual property and offers trade mark services. Oftentimes it is better to meet with a representative. From there you will submit your request to trade mark the intended name of the product / service offering .
Your advisor will do an assessment on whether the trade mark will qualify for registration and is, in fact, available for registration in the sense that something similar does not already exist on the trade marks register. If the trade mark is cleared for registration, the attorney will prepare and submit the relevant documents with the Companies and Intellectual property Commission and ensure a smooth progress from filing the application, complying with any conditions imposed by the commission and the ultimate registration and, in effect, the issuance of the Certificate of Registration.
If the trademark is refused
If a preliminary availability search was conducted, and the trade mark was property assed by a specialised trade mark attorney, it is unlikely that the Commission will refuse the trade mark. However, in the event that any other reason for the refusal arises (such as an objection by an interested third party) the attorney will be best place d to advise on the merits and the best way forward.
If the trademark is accepted
The trademark will be advertised in the Patent Journal, for an opposition period of three months. If the opposition period expires without incident, the Certificate of Registration will issue and the trade mark will be valid for a period of 10 years from the date of application.
Where Can I Register my Trademark?
Adams & Adams specialises in intellectual property matters including trademarks and can oversee the process of your trademark registration from start to finish. Contact us for trademark registration advice or services.