What is a Trademark?

Defining a trademark

A trademark is a sign capable of distinguishing the goods or services of one enterprise from those of others. It can be a word, logo, slogan, shape, sound or even a colour combination. Trademarks build brand recognition and legally prevent others from passing off.

The ™, ℠ and ® symbols

The ™ symbol indicates a claimed but unregistered trademark; ℠ is used for services; the ® symbol may be used only once the mark is registered. Misusing ® before registration is itself an offence.

What can — and can't — be registered

A registrable mark must be distinctive and not deceptive, generic or descriptive of the goods. Marks that are scandalous, hurt religious sentiments, or are identical/similar to existing marks face rejection. Coined or arbitrary words (like 'Kodak') are the strongest; descriptive words are the weakest.

Registered vs unregistered rights

Registration gives statutory protection and the right to sue for infringement. Even unregistered marks get common-law protection through a 'passing off' action, but registration is far stronger and easier to enforce.