UNDER LOCK AND KEY

Business Day - Business Law and Tax Review - - BUSINESS LAW & TAX REVIEW -

posed trade­mark. It is not peremp­tory to per­form such a search; how­ever, it is ad­vis­able that you do.

Some­times th­ese trade­mark searches do not re­veal con­flict­ing rights. How­ever, other times they show prior ap­pli­ca­tions; regis­tra­tions and/or use of the par­tic­u­lar trade mark that could pose a risk to adop­tion of the pro­posed trade­mark. Once you know what marks are out there, you can make an ed­u­cated de­ci­sion whether or not to pro­ceed with use and reg­is­tra­tion of the mark. This is where you should start analysing the risk in­volved in fil­ing an ap­pli­ca­tion for the pro­posed trade­mark. 3. As­sess the risk Should the search re­veal no con­flict­ing trade­marks on the reg­is­ter or in the mar­ket, the risk would be low should you pro­ceed to file an ap­pli­ca­tion for the pro­posed trade­mark. How­ever, should a prior mark ex­ist which could pose a prob­lem in fu­ture, you should con­sider the old busi­ness prin­ci­ple of whether the costs in fil­ing the ap­pli­ca­tion jus­tify the risk of pos­si­ble re­fusal, op­po­si­tion or ex­punge­ment of the trade­mark in the fu­ture. You should con­sider con­sult­ing your in­tel­lec­tual prop­erty at­tor­ney who is best placed to guide you through the po­ten­tial risks and pit­falls which the pro­posed ap­pli­ca­tion faces.

It is al­ways ad­vis­able to rather use an in­vented word as your trade­mark or words which do not have any con­nec­tion with the goods and/or ser­vices for which the mark is go­ing to be used. This will help limit the chances of en­coun­ter­ing prob­lems in fu­ture con­cern­ing the use and/or reg­is­tra­tion of the trade­mark.

A com­pany’s trade­mark is a valu­able as­set in that it es­tab­lishes good­will with its cus­tomers. It is crit­i­cal that you en­sure the trade­mark you se­lect is one which you can reg­is­ter and en­force.

Pic­ture: iS­TOCK

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