A trademark is a sign which enables you to distinguish your goods and services from those of other traders for the purposes of promotion. A sign can include words, logos, drawings (pictures) and even a sound or a combination of these things.
Trademarks differ from copyright (which protects artistic or creative works) or patents (which protects inventions). In contrast to the protection offered by copyright and patents, your trademark registration can last as long as you wish, subject to your renewing it every 10 years.
A trademark can often be one of the most valuable assets your business has, particularly where you trade on a reputation or where your goods are marketed under a particular brand.There are two types of trademarks:
1. An Unregistered Trademark
You can devise and use a trademark without registering it. You can even claim certain rights of ownership over your unregistered trademark but in the event someone else began to use your mark without your permission you would have a potential problem in protecting your ownership.
This is because one of the the difficulties faced by you as an owner of an unregistered mark is that to prevent unauthorised use you would first need to establish that your mark had been used by your organisation as a bona fide trading entity and that it had accrued sufficient goodwill.
2. A Registered Trademark
As a holder of a registered trademark you don't need to establish any of that to protect your mark. The principal advantages of holding a registered trademark are that:
- you will have the right to take legal action against others who use your trademark (or a confusingly similar mark) in relation to the same or similar goods and services as your trademark without your permission
- you can protect your trademark before your product is even put on the market (although you risk having the mark revoked if it is not used for five years);
- there is a presumption that the registration is valid and therefore it offers you greater protection against a claim of trademark infringement (although you should note that the validity is not guaranteed because the validity of a trademark is always open to challenge); and
- registration reduces the possibility of disputes as it confers on the owner increased certainty, because the registration determines the extent of the goods or services to be protected by that particular trademark.
