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Introduction

At its simplest, a trade mark is nothing other than something to mark the goods or services in which you trade. Often, this is called a brand, or brand name.

A trade mark is not necessarily an actual word. A trade mark is some feature which identifies the product for consumers so that they can select what to buy. It is not too difficult to see that different features can have an identifying function:

A mark is defined in the Trade Marks Act to mean any sign capable of being represented graphically, including a device, name, signature, word, letter, numeral, shape, configuration, pattern, ornamentation, colour or container for goods or any combination of the aforementioned.

Read the Trade Marks Act 194 of 1993 at: www.cipc.co.za/legislation/acts.

From the moment you put your mark on your goods or use it in relation to your services, you start to acquire rights in the mark — this is called a common-law trade mark. You can also register your trade mark, and to do this you must lodge an application with the Companies and Intellectual Property Commission (CIPC), which is a division of the Department of Trade, Industry and Competition. CIPC has a trade mark division governed by the Registrar of Trade Marks. From here on we will refer simply to the Registrar.

If the Registrar accepts your application (and if there are no objections from other people) registration will be granted. Then you have a ‘registered trade mark’, and the Registrar will issue you with a certificate as shown above.

You do not have to register your trade mark. However, it is advisable to do so.

A lot goes into the registration process. When your mark has been registered, you can use the sign ®. Like this:

SAIIPL®

If your trade mark has not been registered, you may not use the ® symbol, but it is recommended that you do use the ™ symbol.

Note the correct terminology:

  • You do not ‘patent’ your brand.
  • You do not ‘trade mark’ your brand.
  • You do not ‘copyright’ your brand.
  • You do ‘register’ your trade mark.
  • Until it is registered, you have a ‘common-law’ trade mark.