Trade marks are a form of intellectual property. They have value. Where the trade marks are registered, the value is likely to be greater. This is because:

  • A registered trade mark says to the world “this is made by me” and gives the owner the right to use its mark on goods covered by the registration. Third parties may also be stopped from using a similar sign on similar goods where a likelihood of confusion exists.
  • Equally important, if a third party is using a similar or identical sign on goods that are similar or dissimilar, the trade mark owner may make a claim for unfair advantage. Unfair advantage has become known by the short hand of “riding on the coat tails” or “winking” at the brand and substantially expands the protection for a brand.
  • You do not need to show copying or knowledge of the mark for the activities to be infringing.
  • There is a period of 5 years (or 3 years in some territories) for a proprietor to use a mark and until this time the trade mark is not vulnerable to attack. This is in contrast to an unregistered trade mark where the owner can only prevent others from using it once he has commenced trading.
  • Making an application can act as a bar to others considering adopting a similar or identical mark as registered marks appear on searchable public registers.
  • Registration of a trade mark allows you to put the ® symbol next to it to warn others against using it.
  • A Community Trade Mark (which is a trade mark which covers all member states of the European Union) enables you to secure injunctions to prevent infringement throughout all EU member states.
  • In an action for trade mark infringement a registration is presumed to be valid. It is for the infringer to prove that the mark is invalid.  This is in contrast to unregistered rights where it is necessary for the owner of the brand to show that goodwill exists in the brand in order to take action (by way of passing off).
  • Registered trade marks can be used against unauthorised domain name registrants (“cybersquatters”).
  • If renewed, trade marks live forever.  Most other intellectual property rights are limited, for example, Community Unregistered Design Rights only live for 3 years.
  • Trading Standards Officers or the Police can bring criminal charges against counterfeiters on the basis of a registered trade mark.
  • And ultimately, registered trade marks can be sold, franchised, licensed or mortgaged.

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