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How to register a trade mark

Registering a trade mark heightens the protection it receives and deters others from using it. By registering your mark, the law presumes that you own that mark and all that must be proved is that an identical mark was used without consent for the same goods or services. When you register your trade mark, you'll be able to a) take legal action against anyone who uses your brand without your permission, b) put the Ⓡ symbol next to your brand to show that it is yours and warn others against using it c) sell and licence your brand.

Check if your brand qualifies as a trade mark

Your trade mark must be unique, and must either be:

  • Words, eg EXXON for petroleum products
  • Logos, eg stars for hotel services
  • Sounds, eg a ring tone associated with a telecommunications logo
  • Colours, eg the colour red for a luxury shoe brand
  • A combination of these

Your trade mark cannot be offensive, eg contain swear words or pornographic images, nor can it describe the goods or services it will relate to, eg ‘Cookies’ (for a name of biscuit) cannot be registered on its own. It is also important that your trade mark is not misleading, eg use the word ‘organic’ for goods that are not organic.

Check if your trade mark is already registered

You should search the trade marks database before you send your application to check whether anyone has already registered an identical or similar trade mark for the same or similar goods or services.

Trade mark classes represent the goods and services the trade mark will be used on. It is important that you choose categories that best represent the goods and services that you provide, or intend to provide, under your required trade mark. If your mark is used on different products, you may need to file trade marks in multiple classes.

If your trade mark is not distinctive for the class of goods and services you provide, it cannot be registered.

To ensure your mark can be registered, you’ll need to compare it against trade marks already registered.

If:

  • Your mark is identical to a mark already registered (and for identical goods/services);
  • Your mark is identical to a mark already registered (and for similar goods/services and likely to cause confusion in the mind of the public);
  • Your mark is similar to a mark already registered (and for identical/similar goods/services that are likely to cause confusion in the mind of the public); and
  • Your mark is identical/similar to a mark already registered but the goods/services are different (eg where the mark is ‘famous’), the mark cannot be registered.

In addition, if an unregistered mark has been used in such a way so as to establish rights in passing off (eg a mark is attached to goodwill), you will not be able to register it.

Apply

Apply to register your trade mark online with the Intellectual Property office (‘IPO’). You’ll need:

  • Details of what you want to register, eg a word, illustration or slogan
  • The trade mark classes you want to register for, eg class 1: chemicals, or class 43: food and drink services

You can also apply by post.

Feedback

Once you’ve applied, you’ll get feedback on your application (the ‘examination report’) within 20 days - you have 2 months to resolve any problems (eg you might have to get the consent of the previous rights holder if that person has already registered or applied to register the same or a similar mark).

Publication

If the examiner has no objections, your application will then be published in the trade marks journal for 2 months, during which time, anyone can oppose it.

Registration

Your trade mark will be registered once any objections are resolved and you’ll get a certificate confirming this.

In the event that your application is opposed, you can either:

  • Withdraw your application
  • Talk to the person making the opposition
  • Defend your application
    • Be aware that you won’t be able to register your trade mark until the matter is settled and you may have to pay legal costs if you want to challenge the opposing party.
  • Make sure you report any changes to your name, address or email address
  • You can object to other people’s trade marks, eg if you think they are identical or similar to yours
  • You can sell, market, licence and mortgage your trade mark
  • Your trade mark will last 10 years - you can renew it after that time

The ‘™’ symbol is used where you haven’t registered your trade mark yet or are in the process of registering your trade mark. Whilst it makes people aware that the trade mark is being used, it doesn’t provide you with automatic rights, like registration would.

To further protect your trade mark, you should make it clear that it has been registered. This can be done by placing an '®' (registered) mark somewhere prominent around your trade mark or on products using the trade mark. This can only be done once the trade mark has been registered with the IPO or EUIPO.

Although it is not required, you can further protect your mark by providing more detailed information (eg design number and design owner) somewhere less prominent, like in the product description.

If you want trade mark protection in countries which are members of the European Union (EU), you can apply for a European Union Trade Mark through the European Union Intellectual Property Office. You can also do this using Rocket Lawyer’s trade mark registration service. The registration process takes between 5 to 8 months and gives the trade mark owner the legal right to take action against others who use the brand name without permission.