Trademarks (TM) represent the trade origin of the goods and services. TM are proprietary rights and the owner of the rights holds exclusive rights to use these marks. Under the Trade Marks Act 1994, any sign which is capable of graphical representation and which can distinguish goods and services of one business from those of other is registrable.
A Trade Mark could be made up of words including personal names, designs letters numerals, the shape of goods and their packaging. However, the sign must be capable of being clearly reproduced in an 8cm by 8cm square box in the Trade Mark Journal in order to illustrate how the sign will be shown on the register.
Trade Mark is initially registered for 10 years time period and then the owner can renew it for a further 10 years and so on. In total there are 45 classes in which you can register your TM. You are also allowed to register your TM in one or more of 45 classes.
Under the old law, the sign must be able to be drawn, written in words, numbers or other symbols, or described in very clear words, in order to get registered. This requirement created a problem for certain types of distinctive marks with features such as sounds, music, jingles, scent and olfactory marks.
Sounds, Scents, Music and Jingles
Currently, it is very difficult to register sounds, music, jingles, scent and olfactory marks due to lack of clear graphic representation. You can imagine how difficult it is to distinguish a scent based on a chemical formula or description. You have to use your imagination or perception furthermore a sample of a scent generally with time will fade away as well, making it almost impossible to register as a TM.
As a rule of thumb, any person can use his own personal name, business name and
address, as a TM provided the use is fair and honest. However, if your own personal name is so common that it is unable to distinguish goods and services it is deemed unregistrable. Consequently, most names on their own or standing alone, are unregistrable. However, under the old system, you can combine your name with an address or some other distinctive features, then you are likely to be allowed to register it as your TM.
The UK Government has recently confirmed that there will be changes made to current UK trade mark legislation. A directive from the European Union will be implemented into UK law as The Trade Marks Regulations 2018 and will be effective from 14 January 2019.
The previous law meant that only marks capable of being represented graphically could be registered as UK trademarks. Under the new law, it will become easier to register marks such as words, sounds, scents, and olfactory marks etc so long as they are capable of distinguishing the services or goods of one company from another
The plans for reform were set out by the UK Intellectual Property Office. The new regulations will prevent businesses from being able to rely on the ‘own-name- defence when contending claims of trademark infringement in the UK.
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