A trademark right is the exclusive right to a sign that serves to distinguish the goods or services of one business from those of other businesses.
A trademark right is the exclusive right to a sign that serves to distinguish the goods or services of one business from those of other businesses.
The brand under which you offer your products or services is a crucial asset, yet it often receives too little attention. Market recognition, where consumers associate the brand with your business at a glance, is essential for long-term success. Surprisingly, businesses often overlook key steps such as strategically introducing the brand, selecting an appropriate brand name, or checking whether the brand is still available for registration or use. And when these issues are addressed, it is often too late. Prevention is better than cure. Investing heavily in a product launch, only to discover that the brand you’ve chosen infringes on someone else’s trademark, can lead to significant financial and reputational damage. But what exactly is a trademark , and what can qualify as one?
A trademark is a sign by which a company distinguishes its products or services from those of other companies. Trademarks provide recognition and recognition among consumers. There are different forms of marks, such as word marks (brand names), image marks (logos), word image marks, shape marks, and even sound marks and colour marks.
To qualify for trademark protection, you must register your mark in an official trademark register. A trademark is registered for specific classes of “goods and services,” which are categorized according to the so-called Nice Classification. It is crucial to handle this process with great care to avoid problems both before and after registration. It is strongly recommended to seek guidance from a lawyer or trademark specialist during this process. A mark that appears similar to another at first glance is not necessarily prohibited from use by definition; context and classification play a critical role in assessing whether a conflict exists.
To register a trademark, it must possess sufficient distinctiveness. This means the mark must be capable of functioning as an indication of the origin of your business. The greater the distinctiveness of the mark, the broader the protection you enjoy as the trademark owner.
The trademark must not be descriptive of the products and/or services for which you intend to use it. It also may not be perceived as an indication of the origin, quality, or essential characteristics of those products or services.
If you still wish to use a descriptive brand name, perhaps because it performs well commercially, you may consider adding a creative logo to it. This way, you can at least obtain protection for the logo itself. However, keep in mind that the logo must also not be descriptive.
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Once you have registered a trademark, you hold the exclusive right to use that mark for the goods and services for which it has been registered. Trademark infringement occurs when others, without the trademark owner’s permission, use a registered mark, sign, or trade name in connection with the same or similar goods or services. Subject to certain exceptions, you as the trademark owner have the right to prohibit others from doing so.
Likelihood of confusion
The central test in trademark law is whether there is a likelihood of confusion. If there is no risk of confusion, there is no trademark infringement. For example, consider Ajax the football club, Ajax the fire extinguishers, and Ajax the cleaning product. The goods and services involved are entirely different, and these trademarks – used by completely unrelated businesses – can coexist without issue.
Well-known trademarks enjoy broader protection against infringement, with particular emphasis on safeguarding the brand’s goodwill function. A trademark is considered “well-known” when a significant portion of the relevant public recognizes it.
If you have a question about trademark law, or if you are facing a case of trademark infringement, please contact Guldemond Advocaten.
