A trade mark can be a highly valuable marketing tool. A trade mark is a way of identifying a unique product or service, and helps customers distinguish the quality of an offering over a competitors’.
Trade marks are one form of intellectual property, that when registered, provide its owner the exclusive right to stop others using a similar mark. They convert an intangible asset into tangible property and are often the key to transforming an idea into a successful product.
A registered trade mark differs from a non-registered trade mark. A registered trade mark holds a greater legal bearing, meaning any challenges based on it are far easier to resolve and less costly. This is in part because proving ownership on a non-registered trade mark relies on ‘goodwill’ – that is, the recognition of the mark among consumers and the extra earning power it generates. Goodwill takes time and effort to build. Ownership of a trade mark is established by completing an administrative process, making it a desirable option.
A business may start out with its company name, through creating a registered legal entity. This name can differ from the business name under which the company operates. The business name does not provide any brand qualities nor offer legal protection to that name. Despite the common misconception, a company or business name registration is not a trade mark registration and does not bestow any rights to stop other people using the same or similar name.
A brand captures the central theme or key associations of a product in a very compact and economical fashion. Many consumers prefer to buy ‘brand name’ products over the generic varieties due to the perceived value a brand name provides, which is evident for brand leader Panadol when compared to generic paracetamols.
All businesses strive to have their brand resonate strongly with their customers and establishing a prominent brand is essential to business success. Protecting that brand is equally important. Before committing resources to launch and market a brand, it is important to make sure the business does, or can, own the trade mark to protect the significant investment likely to be made in developing a brand.
Often ‘brand’ and ‘trade mark’ are used synonymously, as they both encompass the uniqueness of the business. However, a brand is more encompassing than a trade mark. Where a trade mark captures the words and logos belonging to the company at the core of the brand, the brand goes beyond to contain the values and attributes that contribute to the overall customer experience, and lead to the establishment of reputation and goodwill.
There are a few points to consider when registering a trade mark to ensure a smooth process:
- Unique elements ̶ Select a name and logo that is distinctive and individual to your company.
- Market research ̶ Conduct research on the market and distinguish yourself from competitors.
- Avoid commonly used descriptive terms ̶ These are to be available for all traders to use to describe the characteristics of their offering, e.g. ‘Chocolate Milk’ will not be protectable as a trade mark.
- Search your trade mark ̶ A trade mark can be easily searched to determine if it exists in the market, but in the long run it is advisable to have a professional advisor conduct a ‘clearance search’ to ensure the trade mark is available and likely to be registerable.
- File your trade mark ̶ Protect your trade mark as soon as possible to prevent others from attempting to use it.
A trade mark must actively be used once it is registered to avoid removal on the grounds of non-use. Importantly, a trade mark should not be used as a noun, verb, or generic term. It is an adjective that describes the business source of the offering, e.g. a Louis Vuitton bag.
Once a trade mark is registered be sure to use the appropriate indicators, such as the ® symbol next to your brand to show that you own the trade mark. The TM symbol can used at any time, only indicating that the business claims it as a trade mark. Finally, use your trade mark consistently to present your company’s value to customers as the more successful your business, the more valuable your trade mark becomes.
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