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A trademark is a mark or sign distinguishing your goods and services from those of your competitors. For this reason your trademark or “brand” is arguably the most valuable asset of your business.

Trademark types

Trademarks come in many shapes and forms. Most common are the word marks (a single word or a phrase) and graphical marks. Graphical marks are not linked to words or phrases, even if they may contain words (such as many logos), but protect the image or design. Both registrations prevent third parties from using the actual mark and also marks that are similar and may cause confusion in the market. A word mark such as “ABCXshine” may thus protect against competitors using “ABCXtchine”. A registered graphical mark may offer protection based on the overall impression of the image, even if the words used are different. If you were to use the red colour and swirling font of Coca-Cola™, you may be violating a trademark even if the words used in the logo was completely different.

There are also other less common types of trademarks. In many jurisdictions it is possible to register a combined mark – where a single registration offers both a protection for the words used and the design. You can also register a 3D trademark to protect a shape, or even a sound or smell.

If I register a trademark, can I claim the same domain too?

Although trademarks and domains are legally separate intellectual properties, if you hold a registered trademark you will very often also have the right to the domain, even if someone has already registered the domain. In most cases the test is if the other party registered the domain name without legitimate right in bad faith. If your trademark has passed the uniqueness test required for registration, this will most likely be the case, and you can file a domain dispute to either cancel the domain or transfer it to you.

Where do I get protection?

Your trademark will be protected in the jurisdiction of registration. If you want protection in several countries or worldwide, you must apply in each country. However, through the Madrid protocol, this can be done as a single application. TRADEMACK are able to assist you with registering trademarks in most jurisdiction, either one by one or as a single application under the Madrid protocol.

What can I register as a trademark?

Practically anything can be registered as a trademark. However there are some general rules to follow. Most importantly your trademark must be distinctive for the goods and services you provide – they must be a unique identifier. Thus anything that is not distinctive, such as marks that only describe a geographical origin (“London” or “Made in Germany”) are not accepted. Likewise marks that are already customary in your line of trade cannot be registered (for example “Four by four” or “windshield wipers” in the car industry). Finally deceptive or offensive marks are not allowed. Each country or jurisdiction may have additional rules. TRADEMACK have in-house experts in all the jurisdictions we operate and will be able to provide advice to help ensure that your trademark is accepted.

Am I protected if I don't register my mark?

In most jurisdictions you may gain some protection of your brand or trademark without a registration. The actual requirements to achieve protection of unregistered trademarks varies slightly from jurisdiction to jurisdiction, but in general you must prove 1) that the trademark is yours, 2) that you have built up a substantial, long term reputation in the mark, 3) that your reputation is country wide and not just local and 4) that the other person’s use of the mark has caused harm.

Proving all these points can be extremely difficult and costly. In general it is therefore highly recommended that you register your trademark properly.