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Trade Marks

It's critical for businesses (whether they are small-medium sized enterprises or a global conglomerate) to protect its brand and trademarks.

What are Trade Marks?

Trade marks are signs or symbols that distinguish the products and services of a particular business – or its ‘brand’ – from others.

They may consist of a brand name, logo, shape, slogan, or style of trading or packaging.

Trade marks can even be sounds or smells, but these can be difficult to register.

How are trade marks created?

‘Unregistered’ trade marks will be created automatically when you start to use them in connection with your business.

If the mark is distinctive, is capable of distinguishing goods and services, and is not offensive or misleading (or otherwise excluded from registration), you can apply for it to be officially registered in the UK, Europe-wide or internationally.

What do trade marks do?

Officially registering a trade mark with the Intellectual Property Office means that no one else can use it, even if they claim to have come up with the same mark independently.

How long do trade marks last?

Both UK and EC registered trade marks last for ten years but can be renewed for further ten year periods.

How can I protect my trade marks?

If you’re an individual or representing a business, you can register a trade mark. The entity registering the trade mark will be the one owning the mark’s intellectual property rights. This means that:

  • If a trade mark is registered under a business name, it becomes a valuable business asset which can be licensed or assigned to other entities;
  • If an individual registers a trade mark, the intellectual property rights remain with this individual and cannot be seized as part of the company’s assets.
  • Possession of a trade mark can be transferred at any time in the application process or after registration.

If a third party uses one of your unregistered trade marks you can bring an action against it for ‘passing off’ if you can show all of the below:

  • your business has a reputation in the mark; and
  • others have confused the third party’s brand for yours; and
  • your business has been harmed as a result.

In the first instance, you can consider using a cease and desist letter to attempt to bring an end to the passing off activity. If this approach doesn’t work or the matter is more complicated, ask a lawyer for advice.