Legally Speaking: What is a Trademark
By Ron Walton | July 1, 1998
A trade-mark is a word, a symbol, a design, or a combination of these, used to distinguish the wares or services of one person or organization from those of others in the marketplace. Trade-marks come to represent not only actual wares and services, but the reputation of the producer. As such, they are considered one of a company's most valuable assets. Trade-marks are entitled to legal protection whether they are registered or not.
Trade-marks are occasionally confused with copyright, industrial designs and patents. These are rights granted for intellectual creativity and are also forms of intellectual property. However, patents are for new technologies (process, structure and function); copyright is for literary, artistic, dramatic or musical works and computer software; and industrial designs are for the shape, pattern or ornamentation applied to an industrially produced object (such as a vase or a chair).
Trade-marks are also occasionally confused with trade names. A trade name is the name under which you conduct your business, whether it be your own name, or the name of a corporation or a partnership. The trade name can be registered under the Trade-marks Act only if it is also used as a trade-mark, that is, used to identify wares or services. Nonetheless a trade name, if unregistered, can still be protected at common law if it has "goodwill" (i.e. a positive reputation) associated with it.
A trade-mark is also entitled to protection without registration. Nevertheless, registration of a trade-mark has certain advantages the most important being that registration is direct evidence of ownership and enables you to more easily protect your rights should someone challenge them. Use of an unregistered trade-mark can lead to a lengthy, expensive legal dispute over who has the right to use it. Registration is valuable proof of first use.
Any unauthorized use by a third party of the same or substantially similar mark can cause the loss of a trade-mark. The trade-mark would no longer be distinctive of the goods or services of one particular company. The establishment of a recognized trade-mark is one of the most valuable assets any business, regardless of industry sector, can have. Therefore, it is equally important to the success of a business not only to establish a known trade-mark but to protect it once established. The benefits of doing so are countless.