Save for dry and boring dictionary definitions, in essence, a trade mark does what it says on the tin. It marks your ‘trade’. In other words, it informs customers that your products and/or services come from you. Note how there is no mention of ‘registration’ in the widest definition of what a trade mark is.  

While trade mark origins are quite simple and humble, as the economy began to transform, the system to distinguish goods/services of one entity from that of another developed and became more sophisticated. Each country/jurisdiction developed its own way of keeping track of which trade mark belonged to whom and that’s how trade mark registration was born.  

The first legal act policing the use of trade marks was passed in 1266 and regulated the use of bakers’ marks on bread they sold. However, it wasn’t until 1875 that the first registration system was established in the UK. The Trade Marks Act of 1938 made it possible to register a mark based on intention to use.

The first mark registered under the 1875 Act was Bass Brewery’s logo.

What is a registered trade mark?

While it is perfectly fine to use unregistered trade marks (as long as you are not infringing on rights of others), getting your mark registered has many advantages. Not least of them being the ability to use the magic ® symbol each time you use your mark – without registration you can only use ™. That symbol, while small, does act as a deterrent to competitors or potential counterfeiters and can be enough to defer them from copying your mark. Why does it hold this power? Because registered trade marks are much easier to enforce than unregistered ones.

Firstly, registering a trade mark provides proof of ownership of the mark. You get a certificate confirming protection of your mark, in relation to your  goods and services and your name printed on it. In order to get to that point, your mark gets published and any owners of marks which may be considered similar have the chance to protest your application. For this reason, it is advisable to search for earlier trade marks before committing to your own. This can save you a load of money in potential re-branding and trade mark oppositions!

Once your mark is registered, it also becomes much easier to exclude others from using it. The burden of proof shifts from you to them (if your mark is not registered, you not only have to prove the existence of your rights with evidence of trade, you also have to prove a likelihood of damage to the brand – if your mark is registered, the assessment is based on the rights on the Register and the alleged infringer will have to prove they are acting legally and fairly). This can also significantly decrease the cost of policing your mark – a simple cease and desist letter with proof of trade mark registration will often be enough for an infringer to stop its activity. Without a trade mark registration, they may not take you as seriously.  

So what are trade marks?

History aside, trade marks serve as information as to who produced the goods or is providing the services on offer to you as a consumer. They are not limited to words or logos only. Anything that is capable of distinguishing your goods/services from those of other players in the market can act as a trade mark. Some brands opt to register a particular colour that is associated with their branding – think yellow for phone directories, green for petrol stations and Orange for… mobile phones? Burberry has its famous checked pattern registered as a trade mark. Lion roaring at the beginning of your movie? Yup, that is registered too. Netflix? Also registered. Streaming on a computer with an Intel Processor? Their ‘bong’ is also a registered trade mark.