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UK Trademark Registration, Trade Mark Searches & Brand Portection

Updated on October 5, 2012

Register Your Trademark Before It's Too Late

A trademark is probably the most important tool in the promotion and recognition of a business' goods or services. It is the primary means by which customers can recognize the products of a particular business. A trademark registration gives the owner the right to stop others from using the same or a similar trademark in relation to the goods or services covered by the registration. It is very important to register your trademark in order to avoid potential damage to your business. Rights in a trademark normally go to the first to register, rather than the first to use. If you do not protect your trademark, then should a third party file a trademark application for a conflicting mark, the resulting registration could be enforced against you. Having a registered trademark could save you a lot of money in the long run.

The first step is to choose your trademark carefully, bearing in mind the requirements of what legally constitutes a trademark. A trademark can be any sign that distinguishes the goods or services of one business from those of others. It can be a word or words, a design, letters, numerals, a slogan, a shape, a colour or a combination of colours.

However, whatever form the trademark takes, in order to be capable of registration it must be distinctive. That is to say, a trademark must be capable of distinguishing your goods or services from those of other traders. It is not possible to register marks that describe the goods or services or any characteristics of them (for example, words that show the quality, quantity, purpose, value or geographical origin of the goods/services), or words that are commonplace in the trade. The reason why such words cannot be registered is that they must be free for everyone to use. For example, the word "ORANGE" would not make a good trademark for fresh fruit or marmalade, but it is perfectly acceptable for mobile phone services. Attempting to register marks that lack distinctive character can waste time and money.

Sometimes, a trademark that appears descriptive may still be registered if it can be shown that the mark has in fact acquired a distinctive character as a result of the use made of it. Normally about five years of use is required. A trademark lawyer will be able to advise you as to the suitability of your chosen trademark.

The next step is normally to have a search conducted to make sure that the trademark is free for you to use and register. Although a search is not compulsory, it is strongly recommended if you are thinking about adopting a new trademark. The purpose of the search is to ascertain whether or not your proposed trademark is available for use and registration, and in particular whether there is any potentially conflicting trademark already on the Register. A trademark search will minimise the risk of infringing another party's earlier rights and so could save you a lot of money. If the search is clear then there should not be any problems. However, it is important to bear in mind that a clear trademark search does not guarantee that your trademark will be registered. There are many factors involved in the registration process, which cannot always be predicted, and therefore, even when a search is "clear", it is not possible to give an absolute guarantee that a trademark will be registered. A trademark search is rather like a forecast; it gives you an indication of what is likely to happen, but sometimes it can be wrong. Nevertheless, the search should turn up any major problems that are likely to occur with an application.

Assuming that the search is clear, you will now be in a position to register your trademark. In most countries a trademark registration is the quickest and cheapest way to ensure that you have the sole right to use the trademark. In the UK any trader using his trademark acquires common law rights simply by using the mark. However, these rights are more difficult and expensive to enforce than the rights arising from a trademark registration. In addition, it takes time to acquire common law rights because your trademark must have a reputation. If you have only used your trademark for a short period, and have not filed an application for registration, it may not be possible to stop others from registering your trademark and interfering with your right to use it.

It is important to note that registering your name as a domain name or company name will not stop a competitor using your name as a trademark, or trying to register your name as their own trademark. In fact, if someone else registers your name as a trademark before you do, they may be able to stop you using your domain name and make you transfer it to them.

In the UK, a trademark registration gives the proprietor the exclusive right to use the registered trademark on those goods or services for which it is registered. A registration also gives the owner the right to stop others from using confusingly similar trademarks for their goods or services or for similar goods and services. In some circumstances, the owner of a registered mark can stop others from using a trademark for goods or services that are not similar to those for which it is registered. The advantages of registration include:

  • You have stronger rights to use and protect a registered trademark;

  • An action for infringement of a registered trademark is easier, quicker, and cheaper than an action for passing off

  • Having a trademark on the register warns others of your claim to that mark and thereby acts as a deterrent;

  • Licensing of a registered trademark is safer;

  • Having a registered trademark in the UK is a good platform for applications in many overseas countries via the Madrid Protocol.

It is important to use a trademark expert to file your application for a trademark registration in order to minimise the risks of problems with your application.

Once filed, your application will be examined by the relevant authorities. The application will be examined to see if the trademark is distinctive and acceptable for registration. In some countries, but not in the UK, the trademark will also be checked against existing trademark registrations to see if there is any potential conflict. Thereafter, assuming that no objections are raised, the application will normally be published for opposition purposes. This is done to allow third parties to object to your trademark if they believe that it is too similar to their own earlier trademark.

If no opposition is encountered, then the trademark will be registered. For UK applications that do not encounter objections or oppositions, the process will not usually take more than about 6 months.

Your trade mark registration will give you the exclusive right to use your mark in respect of the products for which it is registered. The registration will enable you to prevent others from using not only the same trademark, but also any confusingly similar marks in certain circumstances. Only a trademark registration will provide this legal right.

TradeMarkIt are experienced intellectual property consultants, and can advise on all aspects of trademark law. We aim to make obtaining a trademark registration as simple, inexpensive, and trouble-free as possible. We are committed to making trademark registration accessible to small and medium sized businesses who need access to the best advice at a fixed low cost. There are no hidden charges or surprises.

For further information, please visit our website: www.trademarkregistration.org.uk

Or email: info@trademarkit.co.uk

Comments

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    • profile image

      Ron 

      6 years ago

      I am glad that I spoted this hub, exactly what I was searching for.

      Ron from Fitness Tips http://www.intervalstraining.net

    • chenderson00 profile image

      chenderson00 

      7 years ago from South Carolina

      I am bookmarking this for myself. Sound advice for trademarking, I always wondered how to do this.

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