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At Coleman Greig we regularly receive enquiries and questions
regarding trademarks. Unfortunately there appears to be a number of
common misconceptions out there regarding trademarks and now might
be a good time to address them!
1: A business name is the same as a trade mark
The most common misconception is that a business name is the
same as a trade mark. That is not true. Business names and
trademarks are different concepts and serve different purposes.
A business name is a name or title under which a person or other
legal entity may conduct its business. A Trade Mark is a badge of
origin. Under the Trade Marks Act, the term trade mark is defined
as a "sign used, or intended to be used, to distinguish
goods or services dealt with or provided in the course of trade by
a person from goods or services so dealt with or provided by any
other person."
The purpose of a business name is to enable members of the
public to see who is responsible for the particular business.
Whilst the purpose of a trade mark is to give you exclusive rights
to use the trade mark.
You need to be careful that when you select a business name or
use a sign as part of your branding that you do not infringe an
already registered trade mark.
2: What do I use? R or TM
Some companies are not sure when they should use the
"R" symbol and when they should use the "TM"
symbol.
You should only use the ® symbol if your trade mark is
registered. Illegal use of ® is subject to fine up to
$6,000.
If your trade mark is not registered, you could use the
TM symbol. This provides notice that you claim a trade
mark but it is not necessarily registered.
Some common mistakes businesses make with trademarks...
1: Registration in the wrong class
The first common mistake is to apply for registration in the
wrong class. The mark should be registered in the class of goods or
services in respect of which you use the trade mark. A registered
mark in the wrong class could be useless.
2: Not using the registered mark
The second most common mistake is to not use the mark as
registered. If you have a registered trade mark, you always need to
use the trade mark in the exact form it is registered. This is
particularly important for trademarks that include any logo,
stylisation or get-up. A failure to use your registered mark could
result in you losing your mark.
3: Using the mark descriptively
The third common mistake is using the word descriptively rather
than as a trademark. If you have a registered word mark that is
also descriptive, make sure you clearly distinguish your use of the
mark from other text. Use a different font or font size or use
capitals to clearly indicate that you are using it as a TM and not
a description. Make sure you use the ® symbol.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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