Protecting your brand with a registered trademark can reduce the chances that someone else will try to compete using a confusingly similar brand, and make it easier to stop them if they do.
Here are 10 things you may not know about Trademarks
- Trademarks can’t be clearly descriptive of your goods or services. “Cold Ice Cream”, for example, can’t be registered as a trademark for an ice cream store.
- The best marks are unique and memorable, not descriptive. The goal of a trademark isn’t to tell your customer what your goods or services are, it is to make them recognize and want your products.
- The infringement test for trademarks is one of confusion and includes appearance and sound. For example, if two marks are spelled different but sound alike, they are still confusing. If a typical consumer sees an ad for breakfast cereal, and later in the store buys a different cereal thinking it was the one they saw in the ad, then it is confusingly similar.
- Trademarks can be registered for a brand name, a slogan, a logo, a sound, a shape, or a colour.
- In some circumstances, an unregistered (in legal terms a “common law”) trademark can trump a confusing registered mark. Searching for unregistered marks before registration is a good idea.
- Trademark registrations are done on a country by country basis (except for the European Union, where one registration covers all the EU countries). So one needs to look at where their goods and services are sold and in what volumes to determine where the trademark should be registered.
- Trademarks are registered based on their use description, and the drafting of that use description is crucial to ensure proper protection. For example, identical trademarks for a software application and for car parts are not considered confusing.
- Trademark registrations last for 15 years (being reduced to 10 years when pending changes to the Trademarks Act are in force), but can be renewed.
- If your trademark registration is ever attacked, or you want to enforce it against someone else, it can be crucial to have kept samples of how it has been used over time.
- If you don’t “use” your trademark, you can lose your registration and the ability to enforce it. “Use” for trademarks is narrower than you might think. It does not include, for example, a sign on a building or on your letterhead. Even on packaging or in text describing or advertising your products, it may not be considered use if the trademark doesn’t look different than the text around it.