Trademark FAQ
Select from our comprehensive list of frequently asked questions about registering marks below. Our FAQ section provides information on a host of trademark areas from defining a trademark and its benefits, to the renewal process and remedies available for infringement, to name a few.
What is a trademark?
A trademark consists of words, phrases, designs or symbols that create an individual identity to separate the trademark from its competitors. A trademark distinguishes the products or services provided by a business entity against those of other entities.
What are the main types of trademarks?
A trademark can be either registered or unregistered. In some jurisdictions unregistered trademarks can seek protection under common law however the majority of trademark used commercially are registered. Service marks are marks which represent a service as opposed to goods. Specialized types of trademarks include; certification marks, collective trademarks and defensive trademarks.
What are the main reasons to register a trademark?
A registered trademark will protect your brand against third parties from utilizing your trademark to promote their products or services ( better known legally as “passing off" ). The owner of a registered trademark has the right to take legal action against those who infringe their trademark rights and may seek damages for harm caused. A registered trademark will adopt a specific symbol (R inside a circle) to convey to all other parties that the trademark is unavailable to use.
What are the main considerations when selecting a trademark?
In terms of trademark design a trademark should be distinct and easily recognizable against other trademarks. If there are intentions to portray a mark through images or a logo, there will need to be considerations regarding whether the mark is capable of graphical representation. The selection of a jurisdiction or jurisdictions will need to be thought through prior to registering a trademark, as well as whether the trademark complies with the relevant laws of the selected jurisdictions.
What are the main benefits of registering a trademark?
Registering a trademark will ensure that your business entities name, identity and logo are protected and it grants you exclusive ownership in your selected jurisdiction/s of registration. It also ensures that your entities brand, name or logo does not infringe other registered trademarks while granting you legal rights; and if need be, allowing you the ability to take legal action against any party that infringes your trademark rights. A registered trademark will instantly make competitors aware that the trademark is already taken and deter them from using a trademark that is similar.
What is the difference between a trade name and a trademark?
A brand or trade name is the name which a business operates under, and is used to identify a business entities products or services, but, that trade name may not be registered as a trademark.
Who can file a trademark application?
An application for a registered trademark can be filed by any individual, company or legal entity for use of representing goods or services in the market. Many people seek the assistance of a professional consultancy firm to facilitate the trademark search and registration application on their behalf as the process can be time consuming and complex depending on the jurisdictions you seek to register in.
How long does a trademark last?
The validity of a registered trademark depends on the jurisdiction/s the mark is registered in. Typically, most jurisdictions adopt a validity period of 10 consecutive years from the date of registration. A registered trademark is also renewable every 10 years thereafter provided the mark was used in compliance with the appropriate trademark laws. Some jurisdictions stipulate that non use of a trademark for a specified period of time will result in removal and revocation of trademark rights form the owner.
What is the difference between the notations TM, SM and ®?
The symbol TM adopted on an unregistered trademark while the symbol ® is used to demonstrate a registered trademark. In addition to trademarks are service marks denoted by the symbol SM.
How often does my trademark need to be renewed?
The renewal of a registered trademark will typically take place every 10 years as this is the most commonly used validity period of a trademark. The trademark owner will be notified up to 6 months prior to expiry of the trademark and then trademark renewal proceedings will be put into place, either by the owner or by a representative professional consultant. A registered trademark needs to be renewed for as long as it is required in commerce, as non-renewal will render the trademark redundant and without any legal protection.
Do I have the right to sue where I believe my trademark rights are infringed?
The first thing to note is that the infringing trademark must have caused a “likelihood of confusion” to the public and it must have caused harm to your registered trademark. The main factors taken into account for cases of trademark infringement are the similarity of the trademarks in question and the similar of the goods/services the marks represent. Under trademark law, all owners of a registered trademark have exclusive rights to that make and are provided with a great deal of legal protection in cases of infringement or passing off.
What remedies are available to me if my trademark rights have been infringed?
In the instance where a court recognizes your trademark rights have been infringed, you will be able to seek some form of remedy. Typically there are 4 remedies available in trademark infringement cases, these are as follows; injunction relief, profits from opposing party sought, monetary damages, and costs awarded from bringing the infringement case to court. Injunction relief will prevent the opposing party from using the mark. Profits gained by the opposing party as a result of using the registered trademark can also be awarded to the owner of the trademark. Where harm or loss has been caused as a result of the infringement, monetary damages can be awarded and costs of bringing the action may also be reimbursed to the registered trademark owner.
