Intellectual property can be divided into four categories. These are Trademarks, Patents, Designs and Copyright. Intellectual property laws are designed to protect these different categories, although in some cases there is a degree of overlap.
A Trademark is a distinctive sign of some kind, which is used by an individual, business organization or other legal body to individually identify the source of its products or services to its clients, and to distinguish its products or services from those of other entities.
A Trademark is usually a distinctive logo, symbol, brand name, design or slogan that is used to distinguish the services or products of different businesses. Recently non-conventional trademarks have become acceptable in the laws of some countries.
Non-conventional trademarks may be visible signs like colours, shapes, moving images, holograms or positions, or non-visible signs such as sounds, scents, tastes, textures.
The term is also used informally to refer to an individual’s distinguishing marks, such as Elton John’s large glasses or Elvis Presley’s hairstyle.
Trademarks are an important division of intellectual property and make up an extremely valuable asset to most companies. Although a trademark may be defended under common law, it may only be defended under the Trademark Act if it is registered with CIPRO (Companies and Intellectual Property Registration Office).
Once registered, no one else may use that trademark or a similar one that may be confused with it. Trademarks may apply to either products or to the services of a company.
There have been several cases of trademarks being counterfeited recently (eg Gucci handbags, Lacoste golf shirts) and sold as grey goods at flea markets. In recent litigation MacDonalds sued a South African fast food outlet for using the big M logo.
The owner of a registered trademark may commence legal proceedings for trademark infringement to prevent unauthorised use of that trademark.
A Trademark can only be protected and defended under the Act if it is registered, though un-registered trademarks may be defended under common law. The registration procedure results in a registration certificate which has legal status, allowing the owner of the registered trademark the exclusive right to use that mark.
Trademarks may be registered at the CIPRO offices in Pretoria – this is best done by using the services of a Trademark Attorney, but can be done by yourself. You will first need to carry out a search to see that a similar trademark does not already exist.
Then forms TM1 and TM2 must be filled in and handed over with the registration fee, currently R266,00. If your application complies with all the formal requirements, you will be given an application date and number.
All further communications with the office will carry that application number. It takes 18 months to register a trademark, you may start using it as soon as you have received your copy of the application.
If your trademark is accepted unconditionally, you have to advertise it in the Patent Journal, which is published monthly by the Government Printer
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