Features of trademarks
Because registered trademarks have different laws, from certain laws for business names, it can be helpful to understand some of the main features of trademarks.
Registered trademarks and title
Registered trade marks have several attractive features. When you get a trade mark registered, it obtains additional features that can make it considerably more valuable.
- Territorial protection is granted to a registered trade mark.
- Exclusive rights are established by a registered trade mark.
- A registered trade mark becomes an asset.
- Title is established just like property, for a registered trade mark.
- Use of the registered trade mark can be licensed or franchised.
- A registered trademark can be sold, assigned or conveyed to third parties.
- This may have certain attractions from a taxation point of view.
- Registering a trade mark can protect your territory(ies).
- Trade mark registration can help to keep competitors from copying you.
What cannot become a registered trademark
Some of the reasons a trade mark may not be approved for registration include: -
- trade marks that are not distinctive;
- trade marks that indicate the kind, quality, quantity, intended purpose, value, geographical origin, the time manufactured or other characteristics of the goods or services;
- trade marks that have become customary; and,
- trade marks that are contrary to public policy or morality.
So when a new trade mark is registered in Ireland, it must be approved by the regulatory bodies in terms of meeting the requirements of the Trade Marks Act, 1996. It must meet the tests for distinctiveness in order to become registered.
The nature of a registered trademark is in the form of a property
Once registered, you as owner, hold an exclusive right to use the registered trade-mark in Ireland (or the country where registration is granted).
In effect, this feature expands the exclusivity right beyond the factory boundary to include the whole territory of the country involved, for the goods/services registered.
For more information about such exclusive rights visit our page on registered trade marks and monopoly rights. Or you can see some of the other services we provide on the registered trademarks site map page.
A registered trademark can keep competitors well away
There are several situations where registered trademarks have stopped competitors. They help to stop brand copying. They can stop counterfeiting of goods [Nike has been quite successful at this]. In a trademarks case against Internet Service Providers in the USA, the owners of the Louis Vuitton registered trademarks were awarded over €30million in damages. They stopped the ISP from hosting sites that were selling counterfeit goods.
A registered trademark can reduce likelihood of confusion
Because a registered trade mark is a property right, infringement of a registered trade mark is taken very seriously by the courts. The onus of proof tends to lie on any imitator of a registered trade mark.
This can cover a registered trade mark's sound, as well as visual and conceptual aspects.
Certain difference between trade marks can be material in whether a likelihood of confusion can occur. Case law shows some of the principal grounds for assessing such matters.
A registered trademark can command extra value
When buying or selling a business, considerable value can be attached to registered brands.
For example, Bushmills brand, Danone's HP sauces. Visit our trademarks cases page for more information.
The shape of packaging can be a registered trademark
Usually a registered trade mark contains an identity or signature which makes it distinctive in respect of the goods and services involved. It can include the shape of the goods/services or its packaging.
For example, the JIF lemon container and the Coca-Cola bottle are now registered trade marks under the relevant legislation. Or more simply, BOOTS for chemists, or even fictional characters like Winnie the Pooh can be registered trade marks to the substantial advantage of their owners.
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Battle advises organizations, solicitors, and accountants' clients on a range of matters concerning trademarks. Click here to see more Battle trademark services for our range of other trademark services.