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What is a trade mark?

trademark. coffee cup.

Trademarks are badges of origin. They distinguish the goods or services of one trader from another and can take many forms; for example words, slogans, logos, shapes, colours and sounds.

Trademarks are registered for specific goods or services within individual subjects, known as classes. It is possible for others to register identical or similar marks as long as it is in a different, unconnected class. For example Swan rental cars, Swan matches and Swan electrics. There are 45 classes to choose from, a list of which can be found here.

They should not be descriptive and must not include common surnames, geographical names, registered company names or anything implying royal patronage. In Europe, trade marks must be registered in order to have protection. Provided they are looked after properly, see below, a trade mark can last indefinitely.

To continue protection the trademark must be:

  • Used in commerce

  • Have fees paid as required to keep it in force

  • Must not become generic, such as a noun or verb in common usage

  • Must be identified as a Trademark by ® in some countries

Make sure that your chosen trademark does not infringe someone else’s and that you are free to use it. You can complete a free search in the Business & IP Centre. This database is linked directly to the Intellectual Property Office. Decide which types of goods or services you need to protect. You should think about your future plans to ensure your protection covers all the areas your business might need. Think about the geographical coverage you need. You can register a trade mark to protect you in the UK, throughout the European Union, Internationally or in individual countries.

Ensure your trade mark is used in the correct way. It is the mark that identifies your goods or service to consumers, so incorrect use could harm your reputation. Allowing your trademark to become a generic name, like aspirin, escalator and linoleum, results in the loss of your trademark – so beware. Once you have a registered trade mark you need to check to make sure no-one infringes it by having a similar trade mark in the same classes as your goods and services.

If you see someone infringing your trade mark, seek advice from a trademark attorney. They can take action to stop the infringement or could negotiate on your behalf to license your trade mark. Cases rarely end up in court though that is the ultimate sanction of owning a trademark. For a British trademark fees are required every 10 years to keep a trademark in force. Protection in Britain can also be obtained by using a national mark. Since 1st April 1996 two schemes have become available:

  • The Community Trademark (OHIM, from Alicante, Spain). Details can be found in the Community Trademark Bulletin, This allows protection in designated states within this agreement the EU.

  • The Madrid Agreement Protocol, (By WIPO, Geneva). Details can be found in the WIPO gazette of international marks. This allows protection in designated states within the agreement Internationally.

Generally there are two types of trademark searching:

  • Trying to identify the proprietor of a known mark

  • Establishing clearance to use a Trademark

The latter is more complicated because it means searching for similar marks rather than an identical match. The phonetic spelling of a Trademark must be taken into account, also unregistered trade names not normally found on databases. Until recently the only international registration was 'The Madrid Agreement' but this did not include Britain or USA. ‘Les Marques Internationales' published from 1893 arranges the registrations in numerical order with annual name indexes. In 1996 the gazette changed its name to 'WIPO-Gazette of International Marks'.

In April 1996 'The Protocol to the Madrid Agreement involves designating member states, which then have the freedom to refuse registration. This does not affect registration elsewhere. The new scheme for Community Trademarks also became available from 1996. Registrations are valid for the entire of the European Union. As with Madrid a country can object to a registration, but in this case the entire registration for the EU will fall if the objection is sustained. The Paris Convention of 1883 regulated trademark activity - it provided for the '6ters'. Marks for governmental or inter-governmental organisations where a flag, names, initials etc. are excluded from registration.

If you need more help you can visits the Business & IP Centre Northamptonshire or contact The Intellectual Property Office: The IPO is the official government body responsible for granting Intellectual Property rights in the United Kingdom. Can be contacted by phone - 0300 300 2000 or by email. You can take a look at their web page.

Still unsure whether a trademark is a suitable form of intellectual property protection for your work? Make sure you check out our intellectual property page and use the available free web databases to see if a trademark is available for your business idea.

This article first appeared on the British Library’s Business & IP Centre website. View here.

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