A trade mark (commonly referred to as a brand name) is what a trader uses to distinguish his or her goods and / or services from those of other traders, i.e. it is an indication of origin of those goods and / or services.
A trade mark can be and mark which is capable of being represented graphically, and the most common form of trade marks are:
- word only marks
- logo marks
- a combination of the above
The essential function of a trade mark is that it is able to differentiate the goods and services of one trader from another trader, and so the trade mark must have distinctive character.
A trade mark is not distinctive if it is:
- Descriptive of the goods or services. For example, the mark ‘COFFEE SHOP’ for a coffee shop is not capable of functioning as a trade mark because it is purely descriptive of the services on offer and is unable to fulfill the essential function of a trade mark.
- A geographical place name, i.e. ‘LONDON’ cannot be registered as a trade mark for any goods or services as it does not fulfill the essential function of a trade mark.
- Laudatory. This means that a trade mark must not contain praise. For example, the word ‘GREAT’ cannot be registered for any goods or services as this is a word which serves in trade to designate the nature and the quality of goods or services.
- A promotional statement. For example, the phrase ‘I AM GREEN’ applied to clothing cannot be registered as this will be seen as a promotional statement that the wearer who is an individual is environmentally friendly and therefore will not be seen as a sign that denotes origin.
- Deceptive, i.e. the mark must not suggest that your goods possess characteristics that they do not have;
A trade mark must also not be:
- Contrary to law or morality, i.e. your mark must not be offensive.
Trade marks that possess any of the above characteristics may nevertheless be protected by a registered trade mark if the mark has ‘acquired distinctiveness through use’. A mark will have had to have been actively used in trade for a period of no less than 5 years in order for the mark to acquire distinctiveness through use.