A registered trademark can comprise of words, phrases, designs or symbols to form a unique identity which ultimately distinguishes the holder of the mark from competitors in the market. A trademark must be capable of being represented graphically and must not be fully descriptive of the good or service it represents.
Marks which are not registered but which are used to represent a company, service or good are denoted with a TM symbol. Typically, the internationally recognized registered trademark symbol will prevent competitors from utilizing your mark.
Registering your mark will provide protection against outside competition from utilizing your mark to sell their goods or services; this is known legally as “passing off”. Where passing off occurs the holder of a registered trademark has the right to take legal action against anyone using the mark and can claim damages for loss or suffering caused. Registered marks will adopt a unique symbol (R inside a circle) which will immediately convey to the public that the mark is registered and unavailable to use. The registered trademark symbol typically deters competitors from using the mark from the outset. Owning your own trademark is an effective marketing tool and is consequently sought after by most companies worldwide as a form of asset protection.
It is not obligatory to officially register your mark with the relevant intellectual property office in your jurisdiction however, obtaining the rights to your mark will provide you with greater protection and legal rights in cases of infringements and passing off. A registered trademark will adopt a symbol (R inside a circle) at the end of the mark which demonstrates that the mark is in fact legally registered to the holder by the relevant national trademark office.
A mark may be registered provided it does not describe the goods or services in which it represents. The trademark cannot be a generalized term which would be unfair on other traders who will likely need to use such word to promote their goods or services. A registered trademark cannot be misleading to the public in any way and it must be capable of graphical representation. Generally, geographical areas or common names (surnames) are difficult to register due to the popularity of the terms; however it can be achieved in certain circumstances.
The ideal trademark would be a name, design, logo or symbol which uniquely represents the company and broadly distinguishes them from all competitors in the market. A trademark in essence is a brand identity and should be a mark which is clearly recognizable to the public.
Holders of a registered trademark are entitled to sell or franchise their mark to others. They are also permitted to allow others to acquire a license to use their mark. Although registration is not compulsory, it is highly advisable for individuals and companies to adopt to ensure the highest levels of protection is achieved against misrepresentation and counterfeit producers in the market.
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