There is a great deal of misunderstanding and disinformation about what may and cannot be registered as trademarks.
You decide it is time to trademark your company name now that your firm is thriving and your sales are skyrocketing. “What can I trademark?” is a question that many individuals in the same situation ask. They’re curious about this since they’re not sure if a color, a popular term, a symbol, or even their birth names may be trademarked.
In the following paragraphs, we shall present some answers to this question.
What is a trademark?
The term “trademark” is most likely one you’ve heard before. In actuality, practically everything may be trademarked, but there are a few items to consider before submitting an application to your country’s trademark office.
A trademark is a symbol that distinguishes a company’s products or services from those offered by competitors.
What can be trademarked?
Let’s move on to the first question in the preceding paragraphs: “What may I trademark?” Now that we’ve established the definition of the word “trademark,” let’s move on to the second question in the preceding paragraphs: “How do I trademark?”
Trademarks can range from basic words, names, or phrases to more abstract ‘signs’ like forms, visuals, sounds, packaging features, colors, or even fragrances.
Scents can be registered as trademarks in a number of countries, including Australia, India, and the United States of America, however this is extremely rare.
We shall primarily concentrate on wordmarks or logos because they account for the great majority of trademark applications.
What cannot be trademarked?
Not all words or logos are eligible for trademark protection. A sign must act as an identifier of the source of origin of the relevant products or services in order to operate as a mark and so qualify for registration.
Most trademark offices employ the same criteria to determine whether trademarks are likely to be rejected. The following are some of them:
Prior Identical or Similar Trademarks
First and foremost, if you file a trademark application for a trademark that is identical or extremely similar to an existing brand, you will almost certainly get either a trademark office objection or an opposition from the owner of the identical or similar property.
Visual and phonetic similarities (looks like, sounds like), word meanings, translations, and commercial considerations are among the elements to examine. The term “chance of misunderstanding” is widely used to describe this situation.
However, there’s a possibility you’ll be able to overcome these objections or refusals. When it comes to the examiners, the following factors will be taken into account:
- The nature of the mark;
- The types of goods or services for which registration is sought.
For example, suppose you want to register the term “Belle-art” as a trademark for beauty items. However, because you did not do a trademark check first, you were unaware that the exact same term “Belle-art” is already a registered trademark. This is the point at which you could encounter an objection or protest.
However, we are aware that the trademark “Belle-art” has already been registered for kitchen equipment. Because you sell beauty items that are in a distinct class from the products sold by the third party, you may be able to register your trademark in this circumstance (kitchen implements).
In any case, ordering a trademark search to determine your chances of registration success is suggested to avoid circumstances like these, which can result in additional expenditures.
If your trademark is entirely made up of generic terms, it will very certainly be refused. These are phrases or symbols that tell the public what kind of goods or service is being offered.
In general, trademark law prohibits a corporation from using a generic phrase as a trademark. A generic term is a word or phrase that describes the sort of product or service being described: for example, “Apple” for fruit or “Apparel” for clothing.
Everyone has the right to know what kind of goods or services they are selling to the general public. It would be unfair to the competition if a corporation could claim exclusive rights to a generic phrase.
Descriptive markings are weak marks that comprise words that identify the qualities of a product. Trademarks can be registered if they contain some descriptive components, but they cannot be registered if they are “merely descriptive,” that is, if they only contain descriptive terms.
“Quick Automobile,” for example, is purely descriptive because “fast” is a car quality. As a result, anyone attempting to trademark this will very certainly face opposition.
If they tried to register the words “TASTY Automobiles” for the purpose of marketing cars, on the other hand, their application may be allowed since “tastiness” is not a feature commonly associated with cars and hence would be distinctive.
If you were registering for fruit, the converse would be true: “FAST FRUITS” would most likely not be considered descriptive, but “TASTY FRUITS” would.
Specific Country Restrictions
In addition to the standards listed above, which are common to most nations, some have additional limitations. We’ll take a look at a few of them in the next sections. If you intend to register a trademark in a certain nation, however, you should always examine the country’s special regulations.
If a trademark contains the image of a crown or images of members of the Royal family, flags and other State insignia, or armorial bearings, it will be denied in the United Kingdom.
The use of Swiss national symbols, such as the Swiss cross and cantonal coats of arms, in trademarks filed for goods is prohibited by the Swiss federal trademark office. They have the potential to be used as service marks.
Under certain conditions, last names or surnames can be registered as trademarks in most countries. In Australia, however, a trademark that contains a surname will be rejected if the trademark office considers it to be widespread. Surnames that occur more than 750 times on the Australian electoral record will be considered common for trademark purposes.
Trademarks cannot be registered in Saudi Arabia for goods or services that are prohibited. Pork products and alcoholic drinks, for example, are prohibited in this nation.
Overall, the most crucial element for your trademark to be approved is that it does not infringe on prior trademark holders’ rights and that it allows the origin of the goods or services it covers to be identified.
Because the requirements change by nation, it is necessary to research trademark law and does a trademark search before starting to file an application in the country of your choice.
A trademark search will reveal whether or not there are other trademarks that are similar or identical to yours, as well as whether or not your trademark meets certain requirements, such as not being generic or just descriptive. Contact us right away if you’d want some extra help getting started on your trademark registration.