What is a trademark? Definition and examples
A trademark (sometimes also referred to as a ‘service mark’ in the case of the identification of services rather than products) is a sign, design or even an advertising expression that identifies the products or services of a particular company, manufacturer or supplier. Trademarks can be owned by individuals, corporations or businesses and usually appears on packaging or branding as an identifiable mark. The most common symbol is an upper-case letter R enclosed in a circle ® or the superscript ™ attached to a name, tag or product identification.
Trademarks go back much further than you might think, with the first identifiable version coming into force in 1266, when legislation during the reign of Henry III required all bakers to use a distinctive mark on their bread to identify which bakery the product came from. Modern trademarks developed during the 19th century, and the Trade Marks Act 1938 enshrined the concept of trademarks in British law. The Trade Mark Act 1994 is the most recent revision.
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While trademarks are used to identify the owner of a brand or service, they can be licenced so that third parties can manufacture a brand under the same trademark. For example, a variety of manufacturers, including Lego, have licensed figurines from high-profile films such as ‘Star Wars’. Without a licence agreement, any reproduction of trademarked goods is regarded as ‘Brand Piracy’, and can result in expensive and damaging legal action.
Trademarks are generally universally recognised, although some countries enforce the trademark system more rigorously than others, and counterfeiting is always an issue in those countries that do not apply the system as robustly.
So a trademark is just a moniker?
The enclosed R or TM suffix indicates that a product or service is trademarked – the trademark itself is a distinctive brand identification mark, such as the Nike swoop, the McDonald’s ‘golden arches’, or the three Adidas stripes. Trademarks are highly distinctive, instantly recognisable, and brand-specific. There are also what are termed ‘non-conventional trademarks’ which could be based on colour (such as ‘Wedgewood’ blue for porcelain), smell, or sound.
The term ‘trademark’ can also be used in the context of a person or character, such as Charlie Chaplin’s trademark ‘Little Tramp’ look.
Generally, the trademark definition for business users is a strong component of their brand identity – something that is immediately identifiable as being unique to that brand, service or product. It acts as a reassurance to the general public and customers that the product they’re purchasing is authentic and of a quality they would expect from the supplier. Without the trademark indicator, the chances are that the goods are of poor quality, or even potentially dangerous.
How long does a trademark last?
Once you’ve registered a trademark, it lasts for ten years and can be continually renewed (each time for a further period of 10 years). If a renewal fee is not paid by the due date, then the trademark will expire. However, there is a six-month ‘grace’ period from the renewal date during which you can renew your registration. This does incur a fee for late renewal on top of the standard renewal charge. After those six months, you have a further six months when you can apply to restore your mark on your products and services.
Can anything be regarded as a trademark?
No. There are explicit guidelines and criteria that trademarks have to conform to, which are considered when a trademark registration is applied for. Any trademarks that are considered to be too descriptive or are too similar to existing marks will be rejected, while specific geographical locations are also rarely used as trademarks. There are some exceptions such as Bakewell tarts, for example, but these are few and far between.
If the name of your brand or business has already been trademarked elsewhere, you will be unable to apply for your trademark using the same name.
Where do I register a trademark?
UK businesses need to file a trademark application form with the UK Patent Office. To protect your brand further afield, then it’s worth considering a Community Trade Mark in the European Union, which will protect your brand in all EU states. For international protection, you can apply for a trademark that is recognised in 172 countries by applying to what is known as the Madrid Protocol.
Using the Trademark symbol
Even if you register your brand identifier as your trademark, you do not have to announce it to the world by including the ® or TM superscript. You can either omit any indication that the identifier is trademarked or include ‘RTM’ (Registered Trade Mark) if you so wish. If you do want to use it, then it can be used in almost any context, including on packaging, advertising and branding, and even digital content.
Talking of digital…
A trademark applies both on and offline so that you can use it to moniker your online trademark usage too. It is advisable to use your trademark on your online content, as a third party can use a domain name, but cannot use a trademark. Having a trademark on your digital content protects you from online piracy to an extent.
Can’t I just put TM and not register?
You can, but it offers you no legal protection at all. Bear in mind too, that you cannot use the registered trademark symbol or ‘RTM’ without registering (doing so breaches Section 95 of the Trademarks Act 1994).
Why trademark your business?
Trademarks represent a degree of protection for your brand identity, products and services, and as such is an important part of your business plan. With counterfeiting such a significant issue (particularly from countries that are less than rigorous in their adoption of the trademark system), you could be losing thousands or even millions of pounds in revenue if your goods don’t carry some protection against piracy.
A trademark also provides your customers with the reassurance that the products they are purchasing are genuine, authentic, and of a standard, they would expect. A product without a trademark is immediately suspicious in the eyes of the savvy consumer, so it pays to register your trademark to give your customers that extra reassurance that they’re buying the ‘genuine article’.
A trademark is regarded in law as a form of property, so if you do have a dispute with a rival company using a brand, logo, name or even similar type of packaging to your registered trademark then you have a much more tenable position from which to pursue legal redress for an infringement of your trademark. The law will side with the company that owns the rights to a registered trademark over the company that doesn’t, meaning a registered trademark could have a crucial bearing on any court case you or a rival may bring.
If a company challenges you on the use of your trademark, then you will need to demonstrate that the trademark is unequivocally yours and is registered as such.
Is a trademark watertight?
Technically, no. It is possible for someone to register your trademark for a different kind of product or service. This is why when you apply for a trademark you should ensure you file it in as many different classes as are necessary to cover all of the different products and services you provide or may want to offer in the future. So if you’re a shoe manufacturer, you will need to ensure your trademark covers all the classes your products fall into, as well as those you may want to attach your brand identity to in the future.
Selling your trademark
As a trademark is regarded as ‘intellectual property’, it is yours to sell or licence as you wish. However, to ensure you are getting the correct return on your trademark, it is crucial to take specialist legal advice before you do so. Selling or licencing a trademark is effectively how a franchise works – a franchisee buys the right to use a registered trademark in the form of an identifiable business, brand, service or product (for example, a fast food franchise) and then run the business as their own, but under licence from the original franchisor. This does not devalue the trademark in any way, which still belongs to the franchisor, but it does allow the franchisee to use the franchisor’s branding and logos on all goods and services connected directly with the franchise.
Trademarks are a crucial part of brand protection and also act as a key identifier for the brand itself. To avoid losing out to pirates and to reassure your customers that they are buying a genuine article and not a ‘cheap knock-off’, the trademark acts as a guarantee of authenticity. It is recognised in over 170 countries, but the vigour with which trademarks are enforced does differ from country to country.
For franchise owners, a trademark is an essential part of the brand and can be used under licence by franchisees. Without a trademark, it is very easy for a rival to adopt a brand identity that is very close to your own, effectively ‘piggy-backing’ off your own brand’s success and market position. It is therefore just as important to ensure that all your streams are trademark-protected, both on and offline.