Trademarks 101 Essential Information
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1 Introduction This introductory guide to trademarks is intended to provide our clients with the background information that they need to understand the trademark process and to make educated choices about how they approach seeking trademark protection. Even if you have been through the trademark process before we request that you take some time to look through this guide. Index This guide has three main parts: 1. General Trademark Information 2. UK Trademark Applications 3. Overseas Trademark Applications Legal Disclaimer: Please note that all information in this leaflet is intended as a rough guide to trademark protection. It is not intended to constitute legal advice, nor should it be construed as such.
2 What is a trademark? 1. General Trademark Information A trademark is a sign that distinguishes the goods of one trader from the goods of others. Trademarks are most commonly one or more words or a logo, but other more unusual marks such as shapes and colours are possible. For a mark to qualify for protection it should be distinctive for the goods and services covered by the application (i.e. not descriptive of the goods/services or distinctive through the use made of it). Territorial Rights Trademarks are territorial rights, thus a UK trademark covers only the UK. For protection outside of the UK one or more overseas trademark application must be filed. Once registered a trademark can provide the owner with the exclusive right to use the same or a similar mark in relation to the goods and services for which it is registered, or in relation to similar goods and services. If a trademark registration is successfully enforced then the trademark owner can be awarded an injunction, damages or an account of profits, amongst other remedies. In most jurisdictions trademarks are renewable every ten years and can last indefinitely. Priority Dates Filing a first trademark application, such as a UK application, for a particular mark, generates a 'priority date'. Provided applications for overseas trademark protection are filed within 6 months of the first filing then they can be backdated to the date of filing the first application. Thus, for example if you file a first application in the UK you are notionally protected worldwide provided applications for overseas protection are filed within 6 months. Trademark Classes In any trademark application it is necessary to list the goods/services that you wish to cover. Goods and services are split up into classes for the purposes of trademark applications. The more classes in a trademark application the greater the filing costs for the application. The classes are governed by the 'Nice' classification, and a guide to these classes may be found here: As part of our trademark filing service we can help classify your goods and services for you and provide you with a draft specification of goods and services for your approval. We do not
3 charge for this service. Trademark clearance searching A clearance search is a search to try to find out if a mark conflicts with any earlier trademark rights. Without doing clearance searching we cannot know if use of a mark is likely to be held to infringe any existing trademark registrations or common law rights. Furthermore, in many territories, trademark applications will be rejected on the basis of earlier trademarks that the relevant Trade Mark Registry considers to be conflicting. Also, in general, trademark applications/registrations may be opposed/invalidated on the basis of conflicting earlier rights (registered or unregistered). Thus trademark clearance searching can be used to determine whether or not a mark is free for use/registration in the territories of interest. It should be noted that some trademark owners independently monitor applications that are filed to see if they conflict with their own registrations. If the clearance search reveals that there are potentially conflicting registrations then you could choose not to file an application. This would mean that the proposed or ongoing use of the mark will not be brought to the attention of the owner(s) of those existing registrations. If you have been using a mark and are unwittingly infringing a trademark registration then you could be forced to stop using the mark and have damages or an account of profits awarded against you. Thus, if you are already using a mark it is always sensible to perform a clearance search before filing any application. Client Action: Please let us know if you would like any trademark searches to be conducted. Trademark Ownership Ownership of a trademark application leads to certain rights such as the priority right. Only the person owning the priority right can validly claim priority from an application. Client Action: Please let us know of any issues affecting ownership of any trademark application as soon as you become aware of them. Otherwise loss of rights might occur.
4 2. UK Trademark Applications Registration of a trademark is not guaranteed. Once a UK trademark application has been filed the UK Trade Marks Registry performs a search to try to find any identical/similar marks registered for identical/similar goods or services. The Registry also examines the application to check that it complies with the inherent registrability requirements. For example, if the UKIPO believes that the mark is descriptive of the goods/services covered by the application then it will raise an objection. If the Registry finds any conflicting marks or has any other objections to registering the mark then it will issue an examination report inviting observations and arguments against the objections. If any objections to inherent registrability cannot be overcome (by argument, amendment, or filing evidence of distinctiveness acquired through use ) then the application will be rejected. The Trade Mark Registry does not reject applications on the basis of conflicting marks, but if any citations of earlier marks cannot be overcome by argument and the application is allowed to proceed to publication then in some instances (i.e. in respect of other UK applications/registrations) the Registry will write to the owners of the cited registrations inviting them to oppose the application. All UK trademark applications have to be published for opposition purposes prior to a mark proceeding to registration. If, within two months from the date of publication, no one opposes the application or applies to extend the opposition period then the mark will proceed to registration. Currently (May 2013) if no problems arise with an application then registration certificates are being issued around three and a half months from filing.
5 3. Overseas Trademark Applications There are three main routes to obtain foreign trademark protection: 1. Madrid trademark applications 2. Community trademark applications 3. Direct national trademark applications In brief, Madrid applications are international applications that designate a number of countries, and Community applications cover the whole EU. Not all countries can be covered by Madrid applications, thus it can sometimes be essential to file direct national applications, for example in Canada and South Africa. We look at each of the filing options in more detail below. Deadline For Filing Overseas Applications There is no deadline for filing overseas trademark applications. However, for the following reasons it can be beneficial to file overseas applications within 6 months of first-filing. Filing a first trademark application (normally either UK or Community) generates a priority date (the date of first filing a trademark application for mark for the goods/services covered). Applications for overseas trademark protection that are filed within 6 months of the first application can be backdated to the priority date by 'claiming priority'. It is possible to file applications for overseas protection outside of the 6-month period, but any such application will not have the benefit of the priority date. This means that any problematic intervening trademark rights filed between the priority date and the date of overseas filing will take precedence (thereby possibly preventing registration of the mark overseas). Option 1 - Madrid Trademark Applications Subject to having a basic home application or registration (normally a UK or Community registration), it is possible to file a single application with a view to obtaining a single international 'Madrid' registration protecting your trade mark in those countries/territories of interest that have signed up to the Madrid Protocol. Madrid applications are generally not considered cost-effective unless at least three or four countries are designated.
6 Advantages Madrid applications involve a: a. single filing fee; b. single blanket (10 yearly) renewal fee; c. centralised administration for assignments, mergers and changes of name if/whenever required; d. (theoretically) quicker registration of trade marks in many countries; e. substantial reduction in the cost of registering and maintaining trade marks in a large number of countries, mainly by eliminating the need to appoint local attorneys (unless the application encounters an objection). Subsequent designation i.e. territorial extension is possible any time after registration, effective from the date on which it is recorded in the International Register. Disadvantages A Madrid registration is linked to the basic home registration for a period of 5 years. Any changes made to the home application or registration within that period will also apply to the international registration in all countries. If the home registration is lost within those 5 years, the international registration will no longer be effective. A third party wishing to object to your mark(s) in each of the countries could therefore oppose or invalidate your home application(s)/registration(s). However, it is possible (within a certain time limit) to convert the international registration to national applications and still maintain the filing (including priority) date of the original application. If there are any objections, it is usually necessary to appoint a local attorney to try and resolve the objections directly with the local registry. This will add to the costs involved. Option 2 - Community Trademark Applications Community trademarks cover the whole EU with a single application resulting in a single registration. The Community trademark system is very cost-effective, although it does have some drawbacks. The Community trademark is a unitary right, meaning that it either covers the whole EU or doesn t exist. This means that if there is a conflicting earlier right, registered or unregistered, in one EU member country then that earlier right can be used to oppose or invalidate any Community trademark application/registration throughout the EU. If that happens then it is
7 possible, at a cost, to convert the EU application/registration into separate national applications. Currently around 20% of Community trademark applications face formal opposition proceedings from earlier rights holders. Thus, if your main interest is the UK market we recommend first filing a UK application, as the opposition rate in the UK is currently around 4%. The Community trademark is good value at around, and normally the best option for applicants who seek trademark protection in any EU country outside of the UK. It is worth noting that Community trademark protection can be designated as a territory in a Madrid application. Option 3 Direct National Applications This option is sensible if you only want protection in a few countries. Procedure varies on a country-by-country basis. However, as a general rule the relevant trademark registry will perform a search for earlier registered rights and then examine the application in light of what it finds in the search to determine whether or not the mark should be registered. If objections are raised then after a round of arguments and/or amendments the trademark will either be granted or refused. The cost varies greatly depending upon the territory, but in general increases with the number of classes of goods/services in the application. Some jurisdictions do not allow for more than one class in the same application, which can increase costs greatly. As a rough guide, filing of a direct national trademark application can cost anywhere from 800 upwards. Evidently the cost of getting a trademark granted varies wildly depending upon what sort of objections, if any, are raised by the national patent office.
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