What is a trademark

A trademark is a type of logo, symbol, or name that is used as a form of brand identity to represent goods or services in the marketplace. The owner of a trademark can be an individual or a company, and provided the necessary requirements are met, the owner can register their mark with the appropriate registry.

Trademarks defined

Trademarks are effective marketing tools and helps companies create a form of brand identity and customer loyalty, particularly where they are registered. However, a trademark must satisfy a number of requirements before it can be considered eligible for registration.

Graphical representation

All trademarks must be capable of being represented graphically. This is achieved using letters, words, numbers, names, designs, symbols, shapes, colours, or a combination thereof.

Avoid being descriptive

Owners of a mark seeking registration must ensure that the mark is in no way ‘descriptive’ in nature. This means that the name, symbol or logo that represents the mark, cannot describe the product or service it represents.

Distinguishable

A trademark must be unique and distinguishable from the marks of competitors in the market. If the mark is not unique, or if the mark causes confusion to the public, then it is highly unlikely that registration rights will be granted.

Availability

A trademark must be ‘available’ to use prior to seeking registration with the applicable intellectual property office. An effective way to ensure the mark is available is to conduct a trademark search. An experienced consultancy firm or specialist attorney should perform the search. Once it has been ascertained that the mark is indeed available for registration, the owner can initiate the registration application process.

Offensive or Confusing nature

It is essential that the trademark is not offensive to the public. The mark should not be immoral in any way, nor should it cause confusion or upset to the trademark’s target market.

Protection

Where trademark rights are obtained in a specific country, the rights awarded to the owner over the mark are only valid in that country. The legal protection offered to trademark owners is far greater where the mark is registered. Owners can obtain a wider scope of protection where they register their mark with OHIM (Office for Harmonization in the Internal Market). OHIM effectively enables owners to register their mark with all 27 EU member states in one single application.

Overall, trademarks that meet the above requirements can be used in a commercial capacity, whether they are registered or not. For unregistered marks, the symbol TM will be affixed to the logo, while registered marks adopt the symbol ®.

View our Trademark Guide area to learn more.