Trademark protection

 

A trademark is a sign which can distinguish your goods and services from those of your competitors. It may be words, logos or a combination of both.

What is a trademark?

A trademark is generally an important component of your marketing strategy and therefore of economic value to your business. If you have created or use a trademark for your business, you should obtain trademark advice from an intellectual property solicitor.

Trademark advice can include:

  • How to protect and exploit your trademark, and;
  • How to enforce it if another business tries to use or copy your trademark

Registering your trademark

In order to protect your trademark you need to register it. Registering your trademark gives you the exclusive right to use your trademark for the product it covers within the UK. An intellectual property solicitor can advise you whether it is possible to register your design.
For example, it must be:

  • Distinctive and able to be recognised to differentiate your goods from a competitor’s

It cannot:

  • Describe your goods
  • Be deceptive
  • Contain specially protected emblems
  • Be offensive
  • Be against the law

Before designing a trademark it is a good idea to get trademark advice from a specialist before going ahead, so as to minimise costs of reworking the design in the event that it is unable to be registered.

Unregistered rights

If you choose not to register your trademark, you will acquire some unregistered rights automatically. By using a mark or logo in the course of trade, you will automatically start to acquire what is known as ‘goodwill’ in the use of your mark for your product or the service you are offering. The law of passing off provides protection to businesses against competitors who seek to take unfair advantage of your goodwill.

However, in order to rely on the law of passing off against a competitor, you need to be already trading to have acquired the necessary goodwill in the brand you want to protect. Your mark also has to be distinctive enough to work effectively as a trade mark and you will need to be able to prove that your business has suffered a loss as a result of the infringing action you are seeking to stop.

Using a trademark illegally

Once registered, you may use the ® symbol next to it so that others know not to use it. However, it is an offence to use this symbol for a trademark that you have not registered.

Having a company name which is registered with Companies House does not automatically mean that you have a trademark. Once registered, you must renew registration every 10 years to keep it enforced.

You have the right to sue anyone that is using your trademark illegally, but it is your responsibility to police how your trademark is being used. You can sue anyone for compensation who is trying to pass their business off as your own using your registered trademark.

In addition, you can also object to another business registering a trademark that is the same or very similar to your own. Your trademark solicitor can give you more information about these types of trademark infringement.

For further guidance, please visit our information page on trademark infringement.

Do you need help obtaining a trademark, or suing a company for illegally using your trademark? Caven can put you in touch with a specialist trademark lawyer who can help you resolve the matter before your business suffers financial loss.

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