What is a trademark?

by Redmans on November 1, 2012

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Trademarks are a form of intellectual property, a branding of ownership on a particular sign that represents a business’ goods or services. Trademarks are quite simple to create, register and protect. However, the definition and nature of trademarks are often a source of mystery to the individual layman. This post will therefore attempt to sweep away some of this mystery by defining what trademarks are, what can constitute a trademark and, briefly, how they can be useful.

What is a trademark?

A trademark is a simple way of communicating to the world at large that “I made this”. It’s a means of signalling ownership of a particular name, label, slogan or piece of distinctive packaging (among others).

The legal definition of a (prima facie registrable) trademark is “any sign which can be represented graphically and which is capable of distinguishing the goods or services of one undertaking from those of another”.

An example of a trademark is Coca Cola’s quintessential Coke bottle – it’s a sign which is represented graphically (in itself and on promotional literature) which is capable of distinguishing Coca Cola’s products from other companies’ products (such as Snapple or Pepsi).

There are 2 types of trademark:

  1. Unregistered trademark
  2. Registered trademark

What can constitute a trademark?

The following (among others) can potentially constitute a trademark:

  1. Words
  2. Slogans
  3. Designs
  4. Letter
  5. Numerals
  6. Internet domain names
  7. Shape of goods and packaging
  8. Smells

How can a trademark be useful?

Being able to demonstrate ownership of a potential trademark can be useful because it stops others from using your trademark to promote or sell their own products or services. If you aren’t able to demonstrate ownership of the trademark (or the sign doesn’t constitute a trademark) then competitors can pass their goods or services off as those of your business. This is obviously detrimental. If a trademark is registered then it is better able to be protected as the owner can rely on a statutory claim for trademark infringement as well as a common law claim for passing off if they believe that someone else is using their trademark in an unauthorised manner. Further, a registered trademark can be a valuable commercial asset, is commercially exploitable, relatively easy to protect and enforce, a deterrence to potential infringers and renewable potentially indefinitely.

Redmans Solicitors are London employment lawyers and intellectual property solicitors.

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