Trade mark
Trade Mark Law

A trade mark is a sign or trade name applied to goods or services in the course of a business. Trade marks may either be registered or unregistered. Trade marks have the primary function of designating trade origin and thus are said to be 'badges of origin'. The rights vesting in trade marks are one of the intellectual property rights, and are known collectively as 'trade mark rights'.

As badges of origin, trade marks are indicators of quality and reliability: distinctiveness is key for trade marks to serve their purpose of distinguishing the goods and services of traders in the market and thus avoid confusion amongst purchasers of goods and services.

Trade mark rights are about protecting the distinctiveness of the trade mark – the brand – from being unfairly exploited by other businesses. Trade marks are property rights that may be sold, licensed, or leased and dealt with like any other property.

Obtaining a registered trade mark makes it more difficult for competitors to use a similar trade mark; common law trade marks are protected by the tort of passing off. Typically, registered trade marks rights make it easier and more cost-effective to stop another business from wrongdoing in respect to the trade mark, as opposed to relying on unregistered trade marks and "passing off".

Registered trade mark rights give businesses the exclusive right to use a distinctive sign in association with their business, in relation to a product or a service. Signs may be a name, slogan, logo, scent, a sound, a colour, hologram or even a shape. Action signs, such as a rotating device, are also registrable.

Collective and Certification marks – these special trade marks indicate that goods or services adhere to an objective standard of performance of services, quality, origin, or mode of manufacture.

Distinctive Trade Marks

To obtain a registration the trade mark must be distinctive. Signs that other business would ordinarily want to use themselves cannot be registered, such as ”Best in the Business”, ”Finest Quality” or ”Fastest Service”. Also, marks that are too close to other marks already used or registered cannot be registered.