What is a Trade Mark?

A trade mark is a representation or “sign” used to distinguish the goods or services of one trader from similar goods or services of any other trader. It may take the form of a word, logo, colour, shape, scent or sound.

Trade Marks in Business

Company and Business Names

Some businesses have been forced to cease trading under their registered company or business name because they have infringed someone else’s trade mark rights.

Registration of a business or company name does not confer rights in that name.

Before finalising your business or company name, you should conduct a trade mark search and also consider registering the name as a trade mark.

Copyright in Trade Marks

When a trade mark is a logo there may be copyright in the logo as an artistic work notwithstanding any trade mark rights. This copyright is automatic and lasts many years.

Most businesses commission a consultant, such as a graphic designer, to create the logo. Unless there is a written copyright assignment, the graphic designer will ordinarily own the copyright in the work, not the commissioning business.

We recommend addressing this issue by obtaining an assignment of the copyright in the logo at the time of commissioning, and we can assist with preparing the necessary documents for this.

Domain Names

At the same time as searches for prospective trade marks are conducted, or when filing a trade mark application, the availability of domain names associated with that trade mark should also be considered and application made as early as practicable.

It is not uncommon for opportunists to register a domain name and then seek to sell it to the owner of a business with a similar trade mark.

In some circumstances it is possible to have the registration of a domain name forcibly revoked or transferred, but this is expensive and potentially avoidable by early registration yourself.