Trade Marks
- South Africa
What is
a mark?
Definition:
"any sign capable of being represented graphically, including
a device, name, signature, word, letter, numeral, shape, configuration,
pattern, ornamentation, colour or container for goods or any combination
of the aforementioned".
What is
a trade mark?
Definition:
"other than a certification or collective mark, means a mark
used or proposed to be used in relation to goods or services for
the purposes of distinguishing goods or services in relation to
which the mark is used or proposed to be used from the same kind
of goods or services connected in the course of trade with any
other person".
Trade marks
are words, logos or slogans, which capable of distinguishing the
goods or services of the trade mark owner from goods or services
of others.
Trade marks
once registered, can be renewed every 10 years in perpetuity.
If they are not registered, their owners may still be able to
stop use of the marks by others provided they are shown to have
a repute and that the use of the contentious mark will cause the
public to be misled. However this involves problems associated
with proving that the public will be misled unless the unauthorised
use is stopped.
Non-registered
/ common law trade marks are capable of protection against unlawful
use. Such unlawful use occurs when the use by another is likely
to mislead the public (i.e. the goods or services are that of
the trade mark owner). Among the disadvantages of relying on common
law trade marks, is that the owner must prove the mark's reputation
(a time consuming and expensive exercise). A registered trade
mark does not require such proof and is thus easier to enforce.
How are trade marks classified?
Trade marks
are divided into various classes of goods & services. It is
often necessary to file trade mark applications in several classes
to obtain comprehensive / adequate protection. A separate application
is required for each class.
