When starting a business, protecting that business and giving it the best chance at succeeding should be at the forefront of your mind. One of the aspects of ensuring that your business has the best chance at success is registering a trade mark. A trade mark registration goes a long way in protecting your business, ensuring that no one can make use of your brand for their own gain without your consent.
In this article, we will discuss what trade mark infringement is, as well as the laws and rights behind trade mark infringement cases in South Africa.
What is Trade Mark Infringement?
Once a trade mark has been registered, you have the exclusive right to use that trade mark in relation to the goods or services covered by your registration. If another business makes use of your trade mark, or a confusingly similar trade mark, in relation to identical or similar goods or services they are infringing upon your rights in the trade mark and can be legally reprimanded.
Common-Law Rights in South Africa
If you have not registered your trade mark, you may still be able to protect it under the common law by way of the remedy known as “passing-off”. Through use, you acquire a protectable reputation in your brand. Passing-off occurs when one business mispresents its goods or services as those belonging to another business, thereby resulting in confusion.
Succeeding in a passing-off claim
Firstly, you need to prove that you have a protectable reputation in your brand. This is usually proved by way of evidence of the use of your brand, including sales and advertising figures as well as examples of advertising. You must show that members of the public have come to associate the brand (which includes your trade mark and other aspects of your good-up) with you. Secondly, you need to show that there has been a misrepresentation by the other business which is likely to cause damage to your business.
The Reliability of Passing-Off
Relying on passing-off can be onerous, expensive, and time-consuming whereas trade mark registration is prima facie proof of your rights. It is, therefore, advisable to ensure that you have registered your trade mark.
To ensure that your trade mark(s) have been registered correctly and in such a way that you have the most cover possible, contact us at Adams and Adams.
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