What are trade marks and why are they important?
Your trade mark is your brand. It’s the way people remember you and your product – think Whittaker’s, 42 Below, Swanndri. Recognition of a brand allows customers to make repeat purchasers from you and it is an important business asset.
A registered trade mark means the owner has the exclusive right to use and license others to use that mark. Anyone who uses the mark without the owner’s authority faces infringement proceedings. It also means that you have protection for your trade mark throughout New Zealand even if you are only currently using your trade mark in one location.
Why is it important to make sure your trade mark is distinctive? It ensures the customer isn’t confused, provides a strong market presence and prevents discord with competitors. Some of the most famous trade marks are made up words or words or logos that do not have any obvious connection with the goods – think Kodak and the Nike swoosh mark.
So when is similar too similar in terms of choosing a trade mark? Under the Trade Marks Act 2002, the Commissioner must not register a trade mark if it is identical or similar to an earlier registered trade mark and both will be used for the same or similar goods or services.
These days we see a lot of “families” of trade marks from the same company. An example is fashion house Armani, whose trade marks include Giorgio Armani, Emporio Armani, A/X Armani Exchange and Mani.
However, sometimes names might appear similar but come from different sources. Take for example, the current furore about the Intellectual Property Office’s acceptance of RUBI SHOES notwithstanding the registration of the trade mark RUBY (& ruby logo) for clothing, headgear and footwear. These two brand owners appear to be at complete loggerheads and it will be interesting to see how this pans out.
So what’s the best approach to choosing a distinctive trade mark? Be as original as possible if you want to avoid conflict and confusion and establish a strong and successful brand. Legally a trade mark has to be distinctive and not descriptive so be creative in selecting your brand!
Artwork and design can assist in creating a distinctive trade mark but you do not want to have to rely upon the visual presentation of your brand as being the only distinguishing feature.
What’s the difference then between a patent and a trade mark? What about copyright? As you can see, your trade mark is the brand you apply to your product. If you have invented something new then you might be able to obtain a patent to protect that invention. Again you will have the exclusive right to make or licence the manufacture of that product for financial reward.