Trade marks protect the brand of a product or service and associate that product or service with the company or person supplying it. They can be protected by registration under the Trade Marks Act 2002 (the Act).
Advantages of trade mark registration:
A trade mark may not be registrable if it:
A registered trade mark is infringed if an unauthorised party uses a trade mark that is:
Unregistered trade marks
It can be difficult to register trade marks which are for instance descriptive or for a geographical name or too similar to an existing registered trade mark. Sometimes otherwise unregistrable marks can be registered by the use of a logo.
However, if a trade mark is not registered under the Act it may be possible to protect it by using the Fair Trading Act 1986 and the common law tort of passing off as long as sufficient use has been made of the trade mark to have acquired a reputation in the marketplace.
Can you use a trade mark safely?
Before using a new trade mark we recommend that a professional trade mark availability search is conducted. The results of the availability search will help to decide if the trade mark you have chosen can be used without infringing somebody else's rights and whether the proposed new trade mark can be registered (hence more easily protected). A trade mark search is an important part of the risk management process when adopting a new trade mark.