What is a trade mark? Advice from intellectual property lawyers

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What is a trade mark?

To understand what a trade mark is, it is first important to understand how businesses use "signs" in relation to their goods and services.

Businesses attach signs to themselves, their products and their services. These signs might be a name, a logo or other kind of sign which helps the buying public recognise the origin of these goods.

These signs can be registered as trade marks, which prevents other people from using the same sign, or something similar in conjunction with their own goods and services without permission.

Within businesses, registered trade marks become very valuable assets, especially as the business and its products and/or services grow in popularity.

Registering key signs (e.g. names and logos) as trade marks is an important activity for any growing business.

Why is it important to protect your Brands?

It is important to protect the brands associated with your business because it is these that the buying public comes to know you by.

Whether it is a recognisable company name, logo, visual identity, or product/service name - it is used by others and can divert business and profits away from your business.

This not only results in a financial loss for your business - but also reputational loss as "copycats" often produce lower quality goods and services, which the public may assume come from you. 

As a business grows, it becomes more well known as do the products and services it provides. Signs that businesses use to identify these products become very valuable because:

1. They are how the public recognises products/services you create
2. Products and services marked with the signs have more "brand value" and may often be sold at a premium compared to unmarked goods
3. You can license or franchise brands to other people, allowing them to use them within certain rules, growing your business and profits

Why is it bad for your business to not Register Brands as trade marks?

A business without trade marks can operate but will find difficulty in the long run.

It is important for a business name (as well as those of its product/services) to not be used by others.

If their name is already in use, the business may be committing trade mark infringement which may result in expensive and complicated proceedings.

If they are not, but then are not registered as trade marks, others may register the trade mark later. This would mean that the business without the trade mark would, at best, only be able to use this name in a very limited way in the future. 

Registering a trade mark for key signs and brands provides certainty that the business can use this name in a given jurisdiction without threat from others.

It also allows the trade mark holder to enforce their rights over others who might be using the same or similar signs as a way of diverting trade from the owner.

It is a largely inexpensive investment for a business to undertake which secures an asset for the future.

Can I protect a sign or brand without a trade Mark?

Businesses are able to protect signs they have used but not registered as a trade mark via the tort of passing off.

The problem is this: results in less protection, takes more time, and takes more money to do.

For businesses who want to grow nationally and internationally (and avoid rebranding and complicated proceedings) it is best to register a trade mark.

This ensures that the use of important brands is secured in line with the planned of business growth.

It is also notable that as businesses and their products/services become more popular, it is increasingly likely that other people will look to use similar signs to divert goodwill, business and profits.

CAN YOU GIVE AN EXAMPLE?

The logo for Microsoft and those of their products are well known.

Its logo is a blue, yellow, red and green square, and can be called into the imagination with ease.

As a trade marked logo, if anyone else uses a similar logo, Microsoft can launch proceedings.

For a company like Microsoft, which experiences a lot of counterfeiting, it is important for consumers to be able to recognise official products from those that are coming from less trustworthy sources.

These counterfeits may potentially be incredibly harmful to users.

It is the same for any business, that would not want others who look like them to deliver sub-standard products and services. This can both damage the reputation of the brand and also divert profit away from the company.

How can you register a trade mark?

In the UK, it is possible for anyone to register a trade mark online at the intellectual property office (IPO).

To do this, you fill in a trade mark specification and pay a disbursement payment to the IPO. This then puts your registration into the process.

Despite this, our advice is it is very important not to register your own trade mark unless you are an expert. There are many reasons why.

1. Avoiding an opposition - many who register their own trade mark are not aware of other marks it may be infringing. Once they have sought to register it, those who are already registered will be alerted and may oppose the application or even issue trade mark infringement proceedings.
2. Avoiding registration pitfalls - registration is a subtle art. It is important to register the trade mark correctly, which requires an understanding of the legal details. A professionally registered trade mark can be highly specified to the needs of the business now and in the future - for a minimal added cost.
3. Creating a valuable asset - Many trade mark specialists, such as ourselves, will also be able to tailor the registration in line with business strategy - working out exactly what needs to be registered and when (as well as how to generate the most revenue from brands). The small "holes" in self-filed registrations can quickly become black holes in business later on. 

When all of the above is considered, the relative cost of having specialists register your trade mark is very small and secures an asset for your business for years to come.

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ABOUT VIRTUOSO LEGAL?

Virtuoso Legal is a team of intellectual property specialists based in Leeds and London - operating worldwide. Virtuoso Legal's team of IP experts have successfully tried cases in the IPEC, High Court, Court of Appeals and United Kingdom Supreme Court. In addition, the team assist companies in creating, commercialising and protecting the big ideas that make their business unique. The firm and its professionals are ranked yearly in legal directories such as the Legal 500 and Chambers and Partners, cementing their status as a Top 2% law firm in the world.

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​The content on this website, including FAQs and legal posts, is for general informational purposes only and does not constitute legal advice. Laws vary by jurisdiction, and specific advice should always be sought for individual circumstances. Virtuoso Legal is not responsible for any losses arising from reliance on this content. For tailored advice, please contact us at 0113 237 9900 or enquiries@virtuosolegal.com.