What is a registered mark or a trademark?
A registered trademark is a sign which helps distinguish a trader’s goods or services from other traders. There are a variety of classes in which a trademark can be registered according to what industry and use the trademark would be seen in.
A registered trademark can help protect and distinguish a brand from other brands in the marketplace, thus becoming a vital component of any effective marketing strategy. In our client’s case, this has proved vital in order for it to maintain its branding and for its clients and the wide public to readily recognize its brand and to be distinguished from other companies and competitors.
How can you identify a trademark? What is it?
A trademark can be a letter, word, name, signature, number, device, brand, heading, label, ticket, aspect of packaging, shape, colour, sound or scent, or any combination of these. Thus, what you can register as your “mark” is far-ranging.
Why trademark? Why spend the money? What for?
The purpose of registering a trademark for you is:
- ensure that you or your company has the sole right and exclusive use of a brand name and to authorise others to use the registered trademark (which is essential say for franchisees, agents, licensees, and therefore important for franchisors or others to obtain thus to brand and develop their brand);
- create an asset which can be sold; and
- protect against trademark infringement within Kenya or a geographical area of the world, in order to maintain a right to promote and be identified as your brand and recognition of the same, which means your business obtains the benefit of this recognition.
When is a trademark infringed?
The Act provides protection for registered trademarks.
If a trademark is unregistered, an individual will have to rely on the common law action of passing off where the elements of it are difficult to establish, rather than having it registered.
Thus, if another party registers your trademark which you may use every day, the only opportunity to deny this party which has registered your trademark, is to go to court.
The sign is substantially identical or deceptively similar
A person infringes a registered trademark if the person uses as a trademark a sign that is substantially identical with, or deceptively similar to, the trademark in relation to goods or services in respect of which the trademark is registered.
Parties may try and utilize a similar mark to effectively springboard the use of another trademark to gain or divert business away from the trademark holder. Imagine if a competing restaurant chain utilized the golden arches? In many cases, parties naively start using a mark that resembles another without having any awareness of the impending breach.