A trade mark is a sign that you can use to distinguish your business’ goods and services from those of other traders. A trade mark can be a recognizable word, logo, design, sound, smell, colour or expression.
Trade marks can be registered or unregistered. It is not compulsory to register a trade mark in New Zealand or Australia. For an unregistered mark you may rely on your rights under the common law action of “passing off” and fair trading legislation to protect against imitation or infringement. However, it can be expensive and time consuming to take action under the common law and to rely on this there has to have been sufficient use of the trade mark such that it has acquired a reputation in the market place.
Not all trade marks can be registered and it can be difficult to register trade marks which are for example descriptive or are too similar to an existing registered trade mark.
There are a number of advantages of registering a trade mark e.g. you gain a statutory monopoly and so have the exclusive right to use your trade mark for the goods and services applied for. It is also easier to stop other traders from using your trade mark or a similar trade mark, you can licence the trade mark to third parties or can sell the trade mark. Additionally, border protection notices can be lodged with customs which permit them to seize goods that infringe the registered trade mark if they are imported into the country.
Once a trade mark is registered, the ® symbol may be used with the trade mark. The symbol ™ can be used with a trade mark at any time but it does not mean that the mark is registered or protected under trade mark law.
Once acquired, a trade mark can last indefinitely as long as you use your trade mark and renew it every ten years.
If you would like any more information regarding trade marks or would like to file a trade mark application then please just give us a call.