A trade mark can only be protected and defended under the Trade Marks Act, 1993, if it is registered. However, unregistered trade marks may be defended in terms of common law. The registration procedure results in a registration certificate which has legal status, allowing the owner of the registered trade mark the exclusive right to use that mark.
Where do I register a trade mark?
The Companies and Intellectual Property Commission (CIPC) administers the Register of Trade Marks which is the record of all trade marks that have been formally applied for and registered in South Africa.
A trade mark is only registrable if it serves the purpose of distinguishing the goods/services of one trader from those of another trader. Other points to remember include:
- It must not have become customary in your field of trade.
- It does not represent protected emblems such as the national flag or a depiction of a national monument such as Table Mountain.
- It is not offensive or contrary to the law or good morals or deceptive by nature or way of use.
- There are no earlier conflicting rights.
How to register a trade mark?
- Register as a customer on CIPC: Go to the CIPC website (www.cipc.co.za). If you are already registered as a customer, and know your customer code and password, then continue with the next step.
- Deposit funds: Deposit the application fee of R590 regarding every class and every trade mark applied for into the CIPC bank account using your customer code as reference.
- Conduct a search: In order to conduct a search, you can request a special search from CIPC, or you can conduct a cursory e-search yourself.
A registered trade mark can be protected forever, provided it is renewed every ten (10) years upon payment of the prescribed renewal fee.
To make the process easier and more successful, then contact your legal adviser, who can lodge a trade mark application on your behalf and ensure all your documentation is correct.
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)