It’s probably every business’s dream to have their good or service so well known that it is used as a general name for all goods and services in that category.
What is a trademark?
A trademark is a sign that is used to identify particular goods and services as those produced or provided by a certain person or business. It helps to distinguish goods and services produced by one business from similar ones provided by another.
For example, “Gala” is a trademark that identifies sausage rolls made by UAC foods.
“GT BANK” is a trademark that relates to services (innovative banking and financial services).
“Shoprite” is a trademark that relates to shopping malls.
“Maggi” is a trademark relating to seasoning made by Nestle.
“Indomie” is a trademark relating to noodles made by De United Food Industries Limited.
The first asset in any great business is a good name. It should be registered as a trademark. A trademark is usually a word, your name; but it can also be a logo, an email address (email@example.com, a tag line “Just Do it” “Have you Tantalized her lately? Trademarks may consist of a word (e.g. Nestle) or a combination of words (Union Bank), letters and abbreviations (e.g. IMS, EMS, and IBM), numerals (e.g.7/11) and names (e.g. Elizade, or Orekelewa) or abbreviations of names. They may consist of drawings too.
Whether registered or not, a name is a valuable asset that can be protected under the tort of passing off.
In all cases, the trademark must be distinctive: it must be capable of distinguishing the goods or services with which it is used.
Functions of a trademark
They usually; help consumers identify and distinguish products or services; enable companies to differentiate between their products; are a marketing tool and the basis for building a brand image and reputation; may be licensed and provide a direct source of revenue through royalties; are a crucial component of business assets; encourage companies to invest in maintaining or improving quality products; and may be useful for obtaining finance.
How is a trademark protected?
The most common and efficient way of protecting a trademark is to have it registered. Trademarks are territorial rights. This means that, unless a given trademark is protected in a specific country, it can be freely used by third parties.
What kind of protection is provided by a trademark?
A trademark owner is given the exclusive rights to use the trademark to identify his goods or services; to prevent others from using and marketing the same or a similar trademark for the same or similar goods or services; to authorize others to use the trademark, (e.g. by franchising or licensing agreements) in exchange for payment.
Why protect trademarks?
Firstly, it provides business people with a remedy against unfair practices of competitors, which aim at causing confusion in the consumers’ minds by leading them to believe that they are acquiring the goods or services of the legitimate owner of the trademark, whereas in fact they are acquiring an imitated product, which may be of lesser quality. The legitimate owner may lose potential customers, as well as suffer harm to his own reputation.
The second reason is derived from the first, namely to protect consumers from unfair and misleading business practices.
Thirdly, a trademark is often the only tangible asset that represents the investments made in the building of a brand. Brand evaluation grows in importance when a business merges with another or where it is sold. The value of a company may be influenced to some point by the value of their trademarks.
Fourthly, a trademark sometimes becomes so popular that it becomes engrained in the dictionary. It later becomes synonymous with the general class of products themselves. This is how a brand inadvertently contributes a word to the English dictionary!
Olufola Wusu is a Commercial, Oil and Gas and I.P. Lawyer based in Lagos
Olufola Wusu Esq. © 2012
Olufola Wusu is noted for his “dynamic practice” and “commercial acumen”. He is praised for his “first-rate skills” in assisting clients…