A trademark is a mark that has been registered with the aim of distinguishing, in the course of trade, the services or products of a person from the services or products of his/her competitors.
A trademark gives its owner the exclusive right to exclude competitors’ use of the mark with reference to identical or even similar products or services. In addition to ordinary trademarks, collective trademarks and certification trademarks also exist. If a mark has not been registered, an action for unlawful competition may still be useful regarding unauthorised competitive use of the mark, provided that the mark has a reputation.
Example of a trademark:
Trademark = Coke ®
Company name = Coca Cola (Pty) Ltd
Domain name = www.coke.com
- A trademark is a sign to distinguish one’s own products/services from those of your competitors
- Value of Trademarks in
Distinguish from Competitors
Image = Branding!
- A trademark can also be a shape, a form, a pattern or a container for goods i.e. the Coca-Cola bottle
- Both positive and negative associations are made with trademarks
Association with Government i.e. SABS
Surnames i.e. McDonald’s in stead of MacDonald
Collective trademarks i.e. Stellenbosch Wine Route
Letters, Numbers, Sounds, Colour, Words
Passing Off - Same Product, Different Manufacturers
Similar Products - Confusion of Customer
Blurring/Dilution - Different Products, Unfair Advantage
- Regional Names
Paris Convention for the Protection of Industrial Property of 1883
Lisbon Agreement for the Protection of Appellations of Origin and their International Registration
Articles 22 to 24 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) deal with the international protection of geographical indications within the framework of the World Trade Organisation (WTO)
Trade Marks Act No. 194 of 1993
What is a collective trademark?
A collective trademark is also a trademark, but with the difference that it distinguishes the services or products of persons who are members of an association from the services or products of other groups. A good example is that of the wine farmers of the Stellenbosch district, who have obtained the exclusive collective trademark to use the words “produced in the Stellenbosch district”. Collective trademarks may not be registered by individuals. Place names and geographical names are very popular in the case of this type of trademark registration.
What is a certification trademark?
A certification trademark is also a trademark, but with the difference that it certifies the services or products of a person in respect of origin, quality, materials or any other characteristics of the products or services that distinguish them from products or services that have not been certified in this way. A good example is the South African Bureau of Standards (SABS), which can grant an SABS mark to such products or services. In this case, the SABS applies to the Registrar of Trade Marks to have the certification trademark registered as such. The SABS then acquires the right to grant the certification trademark to its clients, provided that the clients meet the requirements of the SABS.