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.
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
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
When Should a Trademark be registered?
There is no statutory time provided for the
registration of trademark.
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
The lifespan of a registered trademark is 7
years, renewable for a period of 14 years after the expiration of the last
Procedures for the Registration of a
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
3. Acknowledgement: The applicant receives
an acknowledgement letter from the Ministry, confirming payment of the
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
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.