WHAT’S IN A NAME, TRADE MARKS AND THEIR ABILITY TO SERVE A DISTINGUISHING PURPOSE

//WHAT’S IN A NAME, TRADE MARKS AND THEIR ABILITY TO SERVE A DISTINGUISHING PURPOSE

WHAT’S IN A NAME, TRADE MARKS AND THEIR ABILITY TO SERVE A DISTINGUISHING PURPOSE

Can you imagine a world without logos, no partially eaten Apple, no Mermaid, no Swoosh. Your most valuable marketing tool is often your business name, logo or slogan also known as your trade marks.

A BREAK DOWN OF TRADE MARKS

What is a Trade Mark:-

  • A Trade Mark is any word, letter, number, symbol, image, signature, scent, container shape, shape, colour or a combination thereof and is used or proposed to be used by the owner of the TM to distinguish his goods/services from those of his competitor;
  • A Trade Mark serves to distinguish similar products or services from each other and must be distinctive enough so not to cause confusion in the minds of consumers;
  • A Trade Mark serves as a badge of origin in other words a trade mark serves as a source indicator, a sign to consumers that the goods originate from a specific source and that the proprietor of that marks holds himself responsible for those goods and their quality.

For most emerging businesses, a trade mark is often a word or an image, or perhaps a combination of the two. Most well-known brands build their identity around the name and logo they have created because these elements become the most recognizable features that customers identify, think back to the partially eaten apple.

BEST PRACTICE WHEN DECIDING ON A TRADE MARK

Trade marks may be categorised in terms of their distinctiveness. Invented words generally provide the highest degree of protection while descriptive words provide the least or no protection at all.  Set out below is a brief summary of each category of trade mark.

 

FANCIFUL OR INVENTIVE MARKS

Words that are fanciful/invented are usually very distinctive, think Google, XEROX, PEPSI. You will not find these words in the dictionary. As a trade marks these invented words will be inherently distinctive and are in most part afforded the greatest scope of protection.

 

 ARBITRARY MARKS

Arbitrary marks are afforded strong trademark protection because they are also inherently distinctive. These marks consist of words that are found in the dictionary but are completely unrelated to the product or service offered, for example Apple in respect of electronics, SHELL in respect of fuel.

 

SUGGESTIVE MARKS

Words that allude to or are suggestive of the goods or services they represent may be distinctive enough to qualify for registration. These marks are not descriptive and require the consumer to use some imagination or perception to understand the nature of the goods or services, for example Playstation and Netflix

 

DESCRIPTIVE MARKS

Finally, descriptive marks are those that are non – distinctive and serve no other purpose than to describe the goods or services they relate to, in certain instances a non -distinctive mark may become distinctive through use, for example Mini for a small car

 

For assistance with evaluating whether you proposed or existing brand name is strong enough to pass to registration as trade mark or registering your trademark, arranges a consultation with our attorney Lizelle L Shadrach

By | 2020-07-01T15:24:31+00:00 July 1st, 2020|iTrademark|0 Comments

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