Trademarks - What is a trademark?

What is a trademark?

A trademark is a mechanism for protesting the sign that a company uses to identify its products or services.

Taking various forms, including names, logos, symbols, and shapes, the role of trademarks is intertwined with marketing and branding, and they are a vital component of modern commerce.

Trademarks enable consumers to easily recognise the source of a product or service, allowing informed purchasing decisions. They also act as a communication mechanism between a business and its customers, and a sign can convey information on the type and quality of the goods. In addition, trademarks represent a continuing reference point for consumers, which can strengthen a brands reputation and build loyalty. This particular role of trademarks has grown, and the modern trademark can attach an attractive aura to a company's brand that can enhance the desirability of their products.

How Long does Trademark Protection Last?

In the UK, a trademark lasts for 10 years from the date of registration. After this period, it can be renewed indefinitely in further intervals of 10 years. However, non-use of the trademark for a period of 5 years could result in the revocation of the rights.

What can be Protected with Trademarks?

In theory, the barrier to what can be a trademark is low, and a sign will qualify for protection if it is able to perform the functions of a trademark without providing an unfair advantage over any competitors.

The first requirement for the sign is for it to be represented in a clear and objective manner. This enables the authorities and competing companies to have certainty in what the trademark is. Conventional signs, such as words and logos, easily meet this criterion, but it can also include the shapes of products or packaging, colours, sounds, smells and tastes.

The sign must be distinctive. Some trademarks are inherently distinctive, principally those consisting of made-up words. However, other types of signs can still overcome this hurdle. If the sign is already in use, distinctiveness can be acquired once consumers regard it as an indicator of the origin of the products.

Some trademarks cannot be registered because doing so would provide an unfair advantage. For example, the sign cannot be descriptive of the goods, unless after using the sign as a trademark it has overridden this descriptive meaning. This is to ensure competitors are not limited in their ability to describe their products due to a rival’s trademark. There are additional restrictions on registering shapes, for example, shapes that perform a technical function may not be registerable as they can be protected by patents or other IP rights. Trademarks which contain offensive or misleading signs, or the use of national flags and official emblems, are also not eligible for protection.

How do I get a Trademark?

Trademarks can be registered at the Intellectual Property Office (IPO), which protects the mark within the UK. Alongside the mark to be registered, applicants must submit the class of goods or services for which they will use the mark. The Nice Classification System provides a list of 34 goods and 11 services to choose from.

Registration requires the payment of a £200 fee (discounted by £30 if filed online) to register a trademark for a single class, and £50 for each additional class. The application is then examined by the Intellectual Property Office, firstly to check it fulfils the criteria introduced above and then to ensure nobody else is already using the sign.

How Long Does Registration Take?

The time taken to register a trademark varies. The IPO will firstly examine the mark to ensure it meets the requirements. On average, this takes around 4 months, but it will depend on the complexity of the application. If these requirements are met, the trademark is published online in the Trade Marks Journal for 2-3 months. During this time, third parties can object to the registration of the sign, for example, by claiming they already own the rights. Objections at any stage will extend the time taken to obtain registration.

Summary

Trademarks play an important function in protecting the signs used to identify the products of your brand. They provide an exclusive right to use the sign, generating goodwill and reputation for your brand by providing a continuing point of reference for consumers. Unlike other IP rights, trademarks can last indefinitely, further increasing their value to businesses.