What is a Trademark?
A trademark is a symbol, word or words used by a trader to distinguish its products or services from its competitors. A trademark can be a brand name, a company logo, a trading style or even distinctive packaging. It can also consist of the shapes of products such as a bottle as well as slogans and straplines.
It is possible for trademark owners to apply for Community Trademarks (CTMs) and/or a UK trademark and this gives the trademark owner the exclusive use of the trademark. A trademark which is registered in the UK is only enforceable in the UK, whereas a CTM is enforceable throughout the EU. Both registrations last for ten years, but are renewable for further ten-year periods. It is alsBreo possible to register trademarks throughout the world, although it is advisable to initially register them in the countries where the particular goods or services are to be sold or provided.
To be registrable, a trade mark must be:
- Capable of being represented graphically;
- Capable of distinguishing goods or services; and
- Not excluded by statute.
What is Trademark Infringement?
The Trade Marks Act 1994 sets out the various circumstances under which someone will be liable for trademark infringement. These are when the infringer:
- Uses an identical sign and identical goods;
- Uses an identical sign, similar goods and there is a likelihood of confusion;
- Uses a similar sign, identical or similar goods and there is a likelihood of confusion; and/or
- Uses an identical or similar sign, the sign has a reputation in the UK and the use of the sign takes unfair advantage of or is detrimental to the character of reputation of the trade mark.
What Remedies are Available for Trademark Infringement?
If a claim for trademark infringement is successful, the claimant may seek the following remedies:
- An injunction preventing the defendant from using the trademark without permission in the future;
- Delivery up and/or disposal of the goods complained of;
- Damages; and