Trademarks

TRADE MARKS

The principal of the practice first practiced as a Trade Mark Attorney in the late 1960s and became a British Registered Trade Mark Agent when the Register of Trade Mark Agents was first opened in 1977. He has managed Trade Mark portfolios in UK, Europe, and throughout the world and was responsible for individual worldwide portfolios of over 15,000 trademarks in over 200 countries for various clients.

The principal and the firm's consultants bring to the practice a substantial sound basis on which to advise clients on all aspects of trade mark law throughout the world.

What is a Trade Mark?

A trade mark is a sign which when used in the course of trade in either goods or services, can serve to distinguish one trader's goods or services from those of other traders. Commonly, a trade mark is a word, a picture (logo), or a combination of the two, but other "signs" such as the shape of a product or its container, or sounds or even smells may be registered as trade marks.

Rights given by registration

Registration of a trade mark gives the proprietor the exclusive right to use the trade mark in relation to the goods or services for which it is registered and the right to take legal action against competitors who might, inadvertently or otherwise, infringe his registered trade mark rights by using the same or a similar trade mark on goods or services identical or similar to the goods or services covered by the registration. Also, the owner of a trade mark registration comprising a mark having a "reputation" in the UK can sue for trade mark infringement, even if the goods or services on which the infringer is using the offending mark are not similar to those covered by the registration.

Common law rights

If a trade mark is used for a considerable time without a registration being sought the proprietor may still have some rights, known as "common law" rights, which may enable the proprietor to protect his interest in the trade mark. However, a legal action based on such common law rights, generally known as a "passing-off" action, is much more difficult and costly to pursue than an action for infringement of a registered mark. It is very important to register your trade mark as the rights against infringement afforded by a registration have been made stronger at the expense of common law rights which have been weakened.

Choosing and using a new trade mark

When thinking of a new trade mark to use, the aim should be to find a mark which is both protectable, i.e., capable of registration, and not used or registered by others. To be registrable, the trade mark should ideally be:

a) not directly descriptive of the goods or services;

b) not a surname or a geographical name;

c) not laudatory; and

d) not deceptive.

Once you have decided on a mark, the next step is to conduct a search of the UK Trade Marks Register and European Community Marks which will determine whether or not the proposed trade mark is likely to infringe any registered trade mark rights of third parties. If the search of the Register is clear, there is still the possibility that a conflicting mark may be in use as a "common law" trade mark - as an additional precaution we can arrange common law searches through relevant trade and general directories. A search through an index of UK limited company names can also be arranged, to establish whether or not there is a company with the same name as your proposed mark.

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