What ™ and ® can do for your brand

Intellectual property can be one of the most valuable assets to an organisation, and there are various ways to protect it. The most common ways are patents, copyright, or trademarks, and each of these different rights protect different aspects of a business.

Patents protect an individual's or an organisation's invention from being developed by a third party. Trademarks, on the other hand, protect the brand or logo of an organisation. An example of this would be Dyson Supersonic hair dryer. The actual technology for the hair dryer is protected by their patent. However the product name “Dyson Supersonic” is protected by a trademark. This protects them if a third party attempts to trade goods under the same name.

What is a trademark?

A trademark is a word, phrase, design or symbol (or a combination of these) that identifies and distinguishes the source of the goods.  You may also come across 'service marks' which refers to a word, phrase, symbol or design that distinguishes a service, rather than goods, from another party. An example of a trademark is Coca Cola. When you see the mark, you know the source of the drink, you know that is not a competitor's drink, such as Pepsi. The phrase Coca Cola is a trademark - the way it is displayed and the format is also a mark. 

A trademark is not limited to just a word or design, it can be a word, sound, colour or smell. An example of a colour trademark is the red sole of Christian Loboutin shoes. Another distinguishing factor about trademarks is that they last forever, unlike patents and copyrights. As long as your trademark is in actual use and you renew after 10 years, it will last forever. Patents, on the other hand, only last for up to 20 years, and only if you renew every 5 years.

Registering trademarks

There are different ways in which an organisation can gain trademark rights. The first way is to register the trademark with the patent office. If you have not registered your trademark, you may still be able to use it if you were the first person to use that trade name, or if you have gained recognition because of your brand name - which means that it cannot be mistaken for another brand. An example of this would be the golden arches symbol of McDonalds. Initially this was a very weak mark, but because it has been in use for so long and has since gained a lot of brand recognition, it is now protected by a trademark right.

There are various ways in which you can indicate whether your logo or brand is a trademark. The ® symbol means that the trademark is registered. Meanwhile, ™ indicates that the trademark is unregistered. 

Trademark tips and tricks:

If you are starting up a new company, it would be a good idea to first register the trademark because you do not want to run the risk of another company having the same name and being sued. If you do start a company, you would hope that one day your trademark would be well known. The best way to ensure that you do not have the same trade name as another organisation is by doing a search on a trademark database. 

In order to have a good trademark, it must be distinctive. A descriptive word would not be acceptable as a trademark, as the word or phrase must not be descriptive of the service or goods you are providing.

For instance, if I open a jewellery shop and call it 'The Jewellery Shop', this would not be acceptable as a trademark. If I open a jewellery shop and name it Leaf, this would probably be acceptable. A real example would be Apple. They make mobile devices. The logo of an apple and the name Apple are not descriptive of the goods that they are selling. This makes it significantly more distinctive. 

The most effective way to avoid a descriptive mark is by making up a name. An example of this would be Viagra. It is completely made up and does not exist in the dictionary, therefore there is no problem regarding its descriptiveness. Additionally, trademarks only apply to the classes of goods or services you are providing. This means that if you start a company that sells cakes and call it 'Sugar Rush', this does not stop another company opening up a clothing brand under the same name. 

What about registering a trademark in another country?

Another thing to note is that different jurisdictions have different rules for trademarks. If you register a trademark in the UK, your brand is protected throughout the whole of the UK. If you are registering a trademark in the USA, you may need to register it in several states. If a trademark is registered in New York, it does not protect you from another company operating under the same trademark in California. You can apply for a federal trademark which will give you rights in different states. 

If you would like to register a trademark in Europe, you can do so through different routes. The most common way is to register with the EUIPO which will grant your trademark in all the member states. 

Overall, trademarks are a great way to protect your brand. Rather than running the risk of an unregistered trademark, the best thing is to register your mark and search for trademarks on trademark databases. This will give you a better idea of whether your mark is original and acceptable.

If you are set on your trademark and there is another trademark which is similar to yours, it would be a good idea to first think about whether the class of goods is similar, or whether you will be establishing a trademark in the same country or state. The best way to avoid having a bad trademark is to ensure that it is not descriptive of the service or goods you are providing, as you will have a higher chance of the trademark being acceptable and able to be registered.