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Trademark basics

Provided by Business Partners Ltd, South Africa's leading investor in SMEs


TM.gifIf you feel that your business has become recognised for its name, unique branding or a catchy slogan you came up with, it may be time to consider registering a trademark. This article will give you the bare basics of what this is and where you can register it.

A trademark is a brand name (Pick 'n pay), slogan ("I'm loving it" - MacDonalds) or logo (the Nike tick) used to distinguish a company, product or services from that of its competitors.

Although you can go to court to defend an unregistered name, it's easier to protect if you've officially registered it. When you register your trademark, you will receive a certificate that proves you have the exclusive right to use it, making a legal proceeding a lot more straightforward.

Before you apply to register your trademark, it's worth doing some research into the logo/slogan/brand you've chosen, to make sure it fulfils certain criteria and, most importantly, that it hasn't already been registered by someone else. We have included various useful links in this category to help you.

Important points to ponder

Your trademark must stand out from the hundreds of thousands of messages and images consumers are bombarded with every day. To achieve this, ask yourself the following questions:

  1. Does it distinguish your product or service from all the others in the market, i.e. will people associate it with you or your business?
  2. Is it a mark, sign or name that is often used in your field or industry?
  3. Could it be a protected emblem, e.g. one used by the government?
  4. Is it legal?
  5. Could it be offensive or does it deceive the consumer by the way it is used or what it's supposed to depict?

There are certain types of trademarks that you can not register for a variety of reasons. For example:

  • When a word or expression is generally used to describe something, e.g. wedding planner, boutique, supermarket
  • A generic image - such as a picture of an orange - can't be registered as it won't distinguish one orange from another
  • If a word or phrase is commonly used to describe an instrument or process used in a certain industry, such as "URL" in the online environment or "freshly baked" in confectionary

It’s worthwhile noting that Intellectual Property laws are quite complex and it may be a good idea to seek the advice of an Intellectual Property lawyer to advise you on the best way forward. Investing in the cost of a couple of hours of professional consultation is probably better than an expensive lawsuit further down the line.

The newly formed Company and Intellectual Property Commission (CIPC) administers the Register of Trademarks, which is a record of all the trademarks that have been formally registered. A registered trade mark will be protected forever, as long as it's every ten years. Visit the CIPC website to apply to register your trade mark.

Source: CIPC

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