A trademark distinguishes and protects your products and services
A trademark is a sign that distinguishes the goods and services produced by your company, enabling you to differentiate yourself from your competition.
A trademark is also an exclusive right. If you hold a trademark, you can forbid others to use the same mark – or one that is easily confused with it – in selling and marketing the same or similar products or services.
There are two ways to gain exclusive rights to a trademark: Registering it, or establishing it through use. However, establishing a trademark through use can take a long time and might be an unreliable way of protecting a brand, so in most cases registration is highly recommended.
Trademarks of every type
You can register almost anything as a trademark as long as it fulfills the registration criteria. There are several categories of trademarks, with the most common being words and logos, but elements such as the shape of a product, a color, sound, or even a scent can be registered as trademarks.
Your trademark must be distinctive – what does this mean in practice?
The distinctiveness of a trademark means that it cannot directly describe the products or services it represents. If the trademark were excessively descriptive, it couldn’t serve to differentiate your products or services from other similar offerings. Furthermore, it is important to remember that the words or patterns for describing a product must be available to anyone, so one cannot gain an exclusive right to them.
Your trademark cannot be confused with prior rights
Your trademark must not be confusingly similar to earlier trademarks or company names. In other words, it must not be identical or too similar to other trademarks or business names that are in force in the given area and encompass the same or similar products or services. Usually, there is little danger of confusion between even highly similar trademarks, if they pertain to different products or services.
The patent office always assesses the risk of confusion individually, while considering all relevant circumstances, such as visual or aural similarity, the equivalence of goods and services etc. If needed, the risk of confusion with existing trademark rights can be evaluated with a preliminary examination before filing the trademark application.
The risk of confusion, along with the possible obstacle to registration resulting from it, can be eliminated if the holder of the existing trademark grants written permission to register the new trademark. This is common practice in situations in which there is no practical risk of confusion, even though the registrations are similar.
A correctly used trademark is a perpetual right
A registered trademark remains in force for 10 years. The trademark can be renewed without limitation every ten years, so in principle it is a permanent intellectual property right.
However, in order to retain the exclusive right to your trademark, you need to fulfill certain requirements for using it. If you don’t utilize your trademark for a certain period (usually three to five years), this allows another party to challenge your right to it. In other words, it is not possible to register trademarks and keep them “in storage” for an indefinite period.
With proper usage and timely renewals, your trademark can be maintained in perpetuity, which makes it your longest-lasting immaterial property right. Due to the extended time span and the nature of a trademark, it carries a lot of recognition and value, so it is crucial to register and protect your trademark rights diligently.