What makes people associate a particular product or service uniquely with its manufacturer or supplier? Whatever it may be… It’s a trademark.
It may be a brand-name, a logo, one or more letters or numbers, the shape of the product or of its container, sometimes a colour, a sound (a Jingle in a TV advert) or even a smell – provided, in each case, that the Trademark serves to distinguish one source for that product or service (whether the manufacturer, retailer or service provider) from all other sources for similar products or services.
Whatever it is, it may be the single most important asset of a business. Guarded, it can bring a continuous stream of custom to a business virtually for ever. Trademarks, once registered, can be repeatedly renewed. Trademark No. 1 – the Bass red triangle – is still registered in Britain after well over a century.
In Britain and other Common Law countries, rights can arise in a trademark simply by use without a registration. These Common Law Rights can be used to stop competitors adopting similar marks, but only by the relatively uncertain and expensive redress of an action for Passing-off.
It is sensible to register any trademark which is, or could become commercially important. It is much easier to stop a competitor using the same or a similar mark on the same or similar goods or services by an action for infringement of a registered trademark than it is to bring a Passing-off action. In addition, Registration confers a right to use that cannot be disturbed by others while the mark remains validly registered.
If businesses don’t register their trademarks, they run the risk that someone else might do so for the same or a similar mark and then try to stop them.
But even a registered trademark, if allowed to just become the name of the goods, can no longer serve to distinguish its owner from other sources for the goods and so it ceases to be valid. The words “aspirin” and “linoleum” were once registered trademarks. A trademark can be cancelled if it isn’t used for five years.
M.J.P. Deans can advise on any trademark matter, including use or availability searching, and file applications, oppositions and cancellation cases in Britain or at the European Union Intellectual Property Office – EUIPO – and through associates in other countries.