Trademarks are used solely to identify the industrial origin of a particular product in such a way that the trademarks serve as a badge of origin on a product. Trademarks can be used in several different forms. They may be:
- A Brand Name – e.g. Volkswagon, Pepsi, Nokia
- A slogan – e.g. “It’s the tobacco that counts”
- A logo – e.g. First National Bank’s Msasa Tree
- A specific shape – e.g. The Coca Cola bottle
More recently trademarks have been further split into conventional trademarks, such as those above, and non-conventional trademarks, which include:
- Colour trademarks
- Hologram trademarks
- Shape trademarks
- Smell trademarks
- Sound trademarks
Essentially then, trademarks are used by an organization to identify its product, products or services from those of other entities to consumers in order that they can distinguish them from others. Trademarks are a form of intellectual property and may be registered. When registered they may not be used by entities other than the registered owner of the trademarks.
Trademarks only give these rights, when registered, to the owner in relation to specific products or services. When registered, trademarks give exclusive rights to the registered owner for ever, providing that they are renewed every ten years. Registered trademarks are often (though not necessarily) marked with a ® and non-registered trademarks with a ™ mark.
Trademarks can be an extremely valuable asset to their owner, and their use may be defended in common law. Only if trademarks are registered (with CIPRO – the Companies and Intellectual Property Registration Office – in South Africa) may they be defended in court under the Trademarks Act. The registration procedure for trademarks results in a registration certificate being issued that has legal status, allowing the owner of the registered trademarks the exclusive right to use those marks.
Trademarks rights have to be maintained through the actual use of the trademarks. The rights will weaken over time if trademarks are not dynamically used. In the case of a trademark registration, failure to actively use the trademarks, or to enforce their registration in the event of infringement, may also expose the registration itself to removal from the register after a certain period of time.
If you have trademarks that need registration, you should first establish that the trademarks have not previously been registered. This can be done at the CIPRO offices in Pretoria. The registration fee is currently R266, which must be handed in to the office along with forms TM1 and TM2.
Although it usually takes up to 18 months for registration to be complete, you may start using the trademarks as soon as the forms have been handed in. Registration may be carried out by a Trademarks Attorney or an Intellectual Property Attorney on your behalf.
The advent of the domain name system on the Internet has led to attempts by the registered owners of trademarks to enforce their rights over domain names that are similar or identical to their existing trademarks, particularly by seeking control over the domain names at issue.
Enforcing trademark rights over domain name owners involves protecting a trademark outside the obvious context of its consumer market, because domain names are global and not limited by goods or services. If you have any queries regarding trademarks please contact us.
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