A trademark is a type of intellectual property consisting of a recognizable sign, design, or expression that identifies products or services. It has been defined according to section 67 of the trademark act as a
…mark used or proposed to be used in relation to the goods for the purpose of indicating or so as to indicate a connection in the course of trade between the goods and some persons having the right either as proprietor or as a registered user to use the mark whether with or without any indication of the identity of that person.
Some businesses have logo or design that is specific and exclusive to them. When the sign is seen, their customers will easily recognise them for example the bird that is associated with Twitter. However, a design can not be exclusive to an individual or organisation by mere usage, the person must have registered it with the Ministry of industry, trade and investment. If a design is not registered then nobody can lay claim to it. But when it is registered, such an individual with the registered trademark can sue for infringement and claim damages in a court of law.
The law that regulates trademarks is the trademark Act and trademark regulations.
The benefit of Trademark Registration
1)Protection of the business identity
2) Exclusive use of the mark
3) Protection of the mark by the law.
4) Distinctiveness: The goods or services will stand out among others.
How to register a trademark
It is only an accredited agent of the trademark registry that register trademarks.
What can be registered
Any device, brand, heading, label, ticket, name, signature, letter, colour mark, numeral, or any combination thereof may be registered as a trade mark. Three-dimensional marks are also eligible for trade mark protection.
Requirements for trademark
The following documents and information will be required for trademark registration.
• the name, nationality and address of the proprietor of the trade mark;
• representation of the trade mark;
• specification of goods/services for which the trade mark is sought to be registered;
• the class of goods/services; and
• an executed Power of Attorney in favour of an authorised agent or attorney to be filed at the Trademarks Registry.
Registration with the corporate affairs commission does not suffice if such a business has a distinctive mark, sign or logo. To enjoy exclusive use of a symbol such must have been registered as a trademark in the trademark registry with the ministry of industry, trade and investment.
It is also important to note that when a mark is not registered, the person claiming ownership can still get a remedy by instituting an action in passing off. Passing off action is the action that is instituted when a mark is not registered. However, It is easier to win a case when a mark is registered than when it is not.