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Are Trade Marks Protected by Intellectual Property?

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Published Date: October 21, 2022

Yes, trade marks are protected by intellectual property rights. Intellectual property’ (IP) is a generic term used to refer collectively to intangible products such as patents, industrial designs, trade marks and brand names, copyright, trade secrets and know-how, etc., all of which are products created through the innovative or creative efforts of people. It is important for people in business to be informed of the different kinds of intellectual property, to recognise when intellectual property has been created within the ambit of their business activities, and to see to it that the necessary steps are taken timeously to ensure that this property is protected. Legal protection is necessary to prevent others from making unauthorised use of the intellectual property to the detriment of the true owner, and to ensure that the true owner will enjoy the full commercial benefit of his/her creative efforts. Most forms of IP, including patents, designs, copyright, and trade marks are protected by law and focuses on creating an environment that allows businesses, creators, and innovators to flourish and benefit from their work or product / service offering.

In this article, we will discuss the difference between a patent, copyright, design, and trade mark, and focus on the statutory territorial protection of such IP.

The Difference Between statutory protectable forms of IP

Patents, designs, copyright, and trade marks are different types of IP that protect inventions, creations, and brands from unauthorised use by competitors.

  • Patent: A patent provides an inventor with the legal right to exclude others from making use of, manufacturing, importing, or selling their invention. For a patent to be granted, the invention must be classified as new, it must include an inventive step, and it must be applied in a trade, industry, or agriculture. The exclusiveness of a patent is only applicable for the term of the patent.
  • Design: A design registration affords protection specifically directed at the visual features of an article, e.g., the shape and appearance of an industrial article.
  • Copyright: Copyright is a property right that protects the expression of an idea. It is an exceptionally powerful right as it allows the owner of the copyright to make use of it as they wish while lawfully preventing third parties from making use of it without explicit authorisation.
  • Trade Mark: A trade mark distinguishes a business, product, or service from competitors. It is represented by a recognisable sign that can consist of a word, name, slogan, logo, signature, or a unique combination of letters and/or numerals. It can also be represented by an unconventional sign such as smells, shapes, and/or colours.

Do I Have to Register my IP in Every Country?

Most forms of IP are territorial and, if you offer your products and services in other countries, you should file and register your IP with the IP office in each country you operate in. It is important to note that you will be required to pay a fee for each registration as indicated by the respective country’s IP office.

Can I Register My Trade Mark Worldwide?

There is no singular registration of a trade mark that would cover every country worldwide; however, it is possible to file for a trade mark registration in each country separately should you wish to do so.

Adams and Adams is a leading African law firm that specialises in intellectual property services. We are able to provide assistance in matters pertaining to trade marks, copyright, and patent. Contact Adams and Adams to find out more about how we can help you protect, enforce, and commercialise your intellectual property.

How can we help you?

We have offices in Pretoria, Johannesburg, Cape Town, and Durban, please contact your nearest office for any legal enquiry or assistance.

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