Your business name and brands can be powerful assets. Customers recognise them, and choose to buy your products or services rather than those of your competitors. Preventing other businesses from trading on your good name helps protect you against unfair competition.
Passing off and trade marks
A trade mark is any sign (or ‘mark’) you use, such as your business or brand name or logo, to distinguish your goods or services from those of other businesses in your line of work. A trade mark can be a word or words, an image, a colour or shape, a sound, a smell or a three-dimensional form, or any combination of these. You may want to use the ™ symbol to flag up that you consider yourself to have rights to use the mark, and are prepared to protect it against abuse.
If people associate a trade mark with your goods and services and it has built up a reputation in your marketplace, you can stop competitors from using or copying it on their goods or services. You need to prove in court that the public associate the trade mark with your business rather than your competitors – often called a ‘passing off’ action.
Passing-off actions can be long and costly, particularly if the competitor has also been using the same or a similar trade mark for their similar goods and services – perhaps in another region. If they have been using it longer and have developed a better reputation, you may even find that you lose the right to use the trade mark because they can show that they have more right to the mark than you can.
Registered trade marks
If you register your trade mark at the Intellectual Property Office (formerly the Patent Office) you have an exclusive right to use it for the kind of goods and services specified in your registration. It is much easier to stop a competitor using or copying a registered trade mark or one similar to it.
To register a trade mark, you have to show that it is distinctive, and not already being used by someone else in your trade. Your trade mark application will be advertised so that anyone else claiming rights has an opportunity to object. There will also be a trade mark search to check whether any conflicting trade marks have already been registered.
Once registered you may (but do not have to) use the ® symbol whenever you use your trade mark, to flag up that it is protected. Registration lasts for ten years and may be renewed indefinitely.
Related articles and resources
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