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Trade Marks and Trade Names

A trade mark is a sign which can distinguish the goods and services of one trader from those of another. In essence, a trade mark is a marketing tool so that customers can recognise the product of a particular trader or manufacturer.

Trade marks can be registered or unregistered.  The Trade Marks Act protects registered trade marks whereas the law of passing off protects unregistered trade marks.

The proprietor of a trade or brand name can also take action if a thrid party registers a domain name which is the same or confusingly similar to the proprietor's  trade or brand name.

Your sign must be distinguishable. If it is the sort of word, logo, picture or other sign that others in your line of trade might reasonably wish to use, or which generally describes the goods or services that you provide, the law may not protect you against other traders who use the same or a similar sign.

The owner of a trade mark has the exclusive right to use it for the goods and services for which it is registered or, in the case of unregistered trade marks, for which it is used.

Also, a trade mark owner may prevent others from using the trade mark in respect of similar or dissimilar goods and services and may even prevent others using a similar, rather than identical, trade mark.

It is easier to protect a registered trade mark than it is an unregistered trade mark.

Community Trade Marks

The Community Trade Mark gives trade mark protection throughout the European Community. Only one application is necessary to obtain European wide registered trade mark rights. Once granted it is valid for 10 years and can be renewed indefinitely.

Points to Note

Someone may already be using your  chosen trade mark—always check

Check to see whether or not your trade mark can be registered

You can grant a licence to someone else to use your trade mark or even transfer it to them

Ensure that your competitors do not use the same or a similar trade mark to yours

If you are likely to export goods or services consider getting European or wider protection

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