A trade mark is a word, phrase, symbol or design, or a combination of them, that identifies and distinguishes the source of a trade mark from that of another, providing the owner with exclusive rights to use it or to authorise another to use it in return for payment. The important criterion for registration is whether a mark is capable of distinguishing the goods of one trader from those of another.
Without a registration of one’s mark, one would need to prove reputation and/or goodwill in the name. A registered trademark gives one quick access to the numerous protections and remedies housed in the Trade Marks Act.
There are many benefits to having a registered trade mark, least of which is that it reduces the chances of becoming involved in litigation. Where conflicting claims to a mark arise, registration is prima facie proof of a registered right in the name. It also assists in ‘cybersquatter’ attacks, where persons unknown, usually in countries outside of South Africa squat on the domain of your mark, and then sell it to you for an inflated sum of money. A registered trademark can easily be commercialised through licensing agreements – the most well-known of which is franchising – rendering the trade mark an even more valuable asset of a business.
Prior to registration, an endorsement – a small ™ symbol – may be used on the upper right hand side of the mark. This serves as notice to third parties that the trade mark is the subject of a pending registration. This is amended to an ‘R’ once registration is granted.
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