Starting and growing a business into a success is on one hand, reaping the benefits of the success of that business is on another. Trademark registration is the nexus of these two factors. Wise decisions in protecting your business should be made as early as possible in that business.

What is a Trademark?

A trademark generally refers to a brand, logo or slogan. It is a is a recognisable sign, design or expression that is used to distinguish products or services of a particular source from those of others.

The owner of a trademark could be an individual, business organisation or any legal entity.

Why Register your Trademark?

Once a trademark has been registered, the owner/proprietor is deemed to have the exclusive right to use that mark in relation to his products and services. That is to say, he then has a legal right to solely enjoy the use of his trademark. Thus, any unpermitted attempt to use such trademark becomes an offence against the owner.

The Owner’s legal benefit further extends to entitling him to institute any legal proceedings to prevent, or to recover damages for the infringement of the registered trademark, to restrain or to recover damages for such infringement.

An unregistered trademark, as the name implies, is a trademark that has not been registered. Its existence depends solely on the goodwill associated with it; and is only protected and enforceable under the Common law cause of action called Passing off, the success of which depends on the Owner’s ability to prove he has a reputation associated with the given name. Any attempt by the defendant to adopt the same mark will cause  confusion to the public, ultimately resulting in actual damage to the business or to the goodwill of the business.

Unlike the legal action in enforcing unregistered trademark rights, in the legal proceedings in registered trademark rights, the plaintiff only has to prove that the trademark was registered, thus granting him exclusive rights to use the trademark, making the issue of goodwill  immaterial.

When Should a Trademark be registered?

There is no statutory time provided for the registration of trademark.

However;

          Because trademarks serve important functions of originality and advertising for particular products; and depending on the type of business involved, for example, in the manufacturing industry which is very competitive and has high potential for growth and success,

It would be in the best interest of the owner to register his trademark as early as possible, so as to prevent other traders from using his trade mark and exploiting the goodwill associated with same.

The lifespan of a registered trademark is 7 years, renewable for a period of 14 years after the expiration of the last registration.

Procedures for the Registration of a Trademark

1. Search: An application for the availability of the trademark is made to ensure that same or similar mark or sign or logo has not previously been registered by another proprietor.

2. Application: Once the trademark search is confirmed, the application form for registration is duly completed and submitted.

3. Acknowledgement: The applicant receives an acknowledgement letter from the Ministry, confirming payment of the application fees.

4. Acceptance: After successful consideration of the application, the Registrar issues an acceptance letter approving the registration of the trademark and also informing the applicant that the proposed trademark would be published/advertised in the Trademark journal (to invite opposition).

5. Issuance of Certificate: An application for the issuance of the certificate of registration of trademark is made.

Trading Your Trademark Rights

Like any asset or property, trademarks can be transferred from the owner to another party. Registered trademarks are valuable because of the goodwill associated with the mark; and established brands create value by licensing the use of their trademarks; and thus, can add value to a start-up looking to attract investment.

Trading your trademark rights is simply transferring the proprietary rights of a trademark from the proprietor to another party either by assignment or transmission. Assignment  means transfer of rights by the act of the parties while transmission means by operation of law, devolution of the personal representatives of a deceased person, and any other mode of transfer not being assignment.