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This post is the first in a series on Trade Marks in intellectual property law. In future posts in this series we will look at:

  1. How to register a Trade Mark
  2. How to commercially exploit a Trade Mark
  3. How to cancel a Trade Mark; and
  4. How to protect your Trade Mark

In this post we will be looking at:

  1. What is a Trade Mark?
  2. What types of Trade Marks are there?
  3. What are the Functions of registered Trade Marks?
  4. What’s the benefit of registering a Trade Mark?

What is a Trade Mark?

The term “Trade Mark” is synonymous with the word brand. It is simply a means of telling the consumer or other businesses “I made this” a badge or indication of the trade origin of goods and services from a particular supplier.

The badge or indication can be any feature of a product or service. It can be the name of the product or service (such as “Fanta”), a slogan (such as “Taste the Rainbow”) or a smell (such as a particular perfume), among other things.

Under the Trade Marks Act 1994 any sign which can be represented graphically and which is capable of distinguishing the goods or services of one undertaking from those of another is prima facie registrable as a Trade Mark (s.1(1) TMA 1994). This should be the standard applied to both types of Trade Mark – registered and unregistered.

What types of Trade Marks are there?

There are two broad “types” of Trade Marks: registered and unregistered Trade Marks. Anyone can attempt to register anything as a Trade Mark. However, only Trade Marks which meet the criteria specified in the Trade Marks Act 1994 are capable of being registered. These are:

  1. It must be a sign
  2. Which can be represented graphically; and
  3. Which is capable of distinguishing the goods or services of one undertaking from those of another; and
  4. Isn’t ineligible as a Trade Mark under either the Absolute or Relative refusal grounds

What are the functions of a Trade Mark?

The functions of a Trade Mark are as follows:

  1. To associate the trade origin of the goods or services with a particular supplier
  2. To indicate the likely quality of the product
  3. To measure the ongoing value of the brand image of particular products to a supplier, or of the supplier as a whole
  4. As a useful and exploitable piece of property

What are the benefits of registering a Trade Mark?

It is probably more prudent to list the disbenefits of not registering a Trade Mark prior to considering the benefits of registering a Trade Mark.

The disadvantages of not registering a Trade Mark are that it is more difficult to commercially exploit the asset and that the only protection available to owners of unregistered Trade Marks is that of the common law offence of “passing off”.  Proving “passing” off can be an extremely complex and time-consuming process.

Registered Trade Marks, on the other hand, have the benefit of utilising statutory and common law actions (respectively, actions for infringement of a registered trade mark under s.10 of the Trade Mark Act 1994 and the common law action of passing off).

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