To register a trademark you have to follow the right procedures in all Countries you wish to obtain protection for your mark. A trade mark can only be protected as such and defended under the Trade Marks Act, 1993 (Act 194 of 1993) if it is registered. A trademark represents a brand name, slogan or logo. It identifies the services or goods of one entity and distinguishes it from the goods and services of another. 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.
Unregistered trademarks may be defended in terms of common law. Trademark examples include: Name, Slogan, Logo, Shapes, Sounds, Tunes, Tastes, Textures, Three-dimensional Marks, Colors, Holograms, Motions, Multimedia, Positions, Gestures, Smells, Scents.
A trademark is registrable if:
- it serves the purpose of distinguishing the goods/services of one trader from those of another trader.
- It does not consist exclusively of a sign or an indication which may serve, in trade, to designate the kind, quality, quantity, intended purpose, value, geographical origin or other characteristics of your goods or services, or the mode or time of their production or of rendering of the services
- Has not become customary in your field of trade
- It does not represent protected emblems such as the national flag or a depiction of a national monument such as Table Mountain
- It is not offensive or contrary to the law or good morals or deceptive by nature or way of use
- There are no earlier conflicting rights
The trademark symbol for unregistered trademarks is designated by the letters TM written in superscript style. In practice it will look like this: Product™ . It is used directly after the logo, mark, or slogan that is not registered. When a trademark is registered with the specific trademark office you will see an “R” in superscript surrounded by a circle after the logo, name or slogan. It will look like this: Product ®.