Why is it Important?
Your brand is often your most valuable asset and a registered trade mark will protect your brand.
Most people assume that when you register a company name, business name or domain name that you have protection against competitors who might start trading with an identical or similar name or passing their goods and/or services off as yours. This is not the case. The only way to protect yourself against this is with a registered trade mark secured with either the Irish Patents Office or the European Trade Marks Office depending upon where you do business.
A registered trade mark gives you automatic legal rights which you can avail of immediately should someone step on your toes or pass their business off as your own. With a registered trade mark you do not need to prove that the goodwill and reputation of your business is being damaged. It is a much simpler process of providing the registered trade mark number and the details of the business infringing your mark.
When you do not have a registered trade mark for your business, you must rely on the common law of tort. In this situation you must prove that the goodwill and reputation of your business is damaged as a result of the infringement and you have suffered loss as a consequence. This can be incredibly difficult to prove and there are huge costs involved in instructing lawyers and going to court with no guarantee of a successful outcome, which can mean bringing a legal action of this type is not an option for many businesses. The best way to avoid this is register your trade mark as soon as possible to protect your business.
What can be trademarked?
You can register anything from names (including personal names), logos, slogans, letters, shapes, sounds, smells, and packaging, amongst other things, as long as you are able to show that
whatever you are seeking to protect is Distinctive and Consumers can clearly identify your mark with your business. The perfect example would be the Nike Swoosh. Consumers know that when the swoosh is used on its clothing range that they are buying a Nike product.
Other examples are Cadbury’s, they secured registration of the colour purple when used on their milk chocolate products. Nestle argued against this on the basis that this colour gave them unfair commercial advantage and it was not distinctive enough to allow it to be registered. This argument was rejected in the High Court as Cadbury provided sufficient evidence that the shade of purple used was distinctive for their milk chocolate products, and consumers overwhelmingly associated the colour purple with Cadbury’s milk chocolate products.
Another example is Harley Davidson who have registered the sound of their bikes as no other motorbikes have the same sound when they start up.
While many things can be registered, words or logos that are generic or descriptive in nature can not be trademarked. It is worth in this instance seeking the advice of an expert to ensure that the name you are looking to protect firstly, is one that is available, and that there is not an identical and/or similar trademark applied for or registered that could potentially expose you to being sued, and secondly, that your mark is one that is capable of being registered and satisfies the requirements laid down by the Patents Office to secure legal protection.
Original and unique
When designing your logo do ensure it is an original artistic work, and NOT clip art, and that it is exclusive to your business. Be very careful if you decide to buy online. Often these ‘logos’ are not unique to you and cannot be trademarked. By buying online you also risk someone else having the same icon or symbol as you, which could cause confusion for you.
Do however be careful in choosing your business name, because as we have said already, generic or descriptive words often cannot be trademarked. Think alternatively, and outside the box. Better still come up with a made up word.
How do you trademark
If you have a logo already, ensure that it is unique to you and an original artistic work. You will need high res images of your logo and proof that you own it. If you do not have a logo, commission us at CUBE Design as we specialising in branding, and will create this for you and supply you with all the necessary artworks. We also work in association with a specialist trademark attorney, and can help you supply the correct files and details. A specialist trademark Attorney, will handle all matters relating to trademarks, copyright, designs and any other intellectual property related matter.
Protect your brand and trademark
Registering a trade mark early on is the best line of defence in a society that relies heavily on online information and online interaction with brands. Businesses face fake websites passing themselves off as the real thing, and all of these can directly affect a brand image if they’re not policed properly and can drive away existing and potential customers. Trademark registration provides a means of more direct enforcement and policing of a brand and it can form the basis of a cease and desist letter and litigation against those trying to exploit it.
Its worth it
Many businesses fail to register their brands because of time and cost pressures, but don’t leave it. We can’t predict the future, but things move fast, new businesses are popping up around you, there is always someone with a new idea, so make sure your new and fabulous ideas are protected. It really is worth it in the long run.