What is a trademark?
A trademark is a sign that is used by a company in order to identify its products and services. Upon seeing this sign, the general public is able to distinguish it from other companies’ products and services on the market.
A trademark is therefore a “sign.” There may be different forms of this sign, such as words, abbreviations, combinations of figures, slogans, images, shapes and colors, or even sound bites. See types and examples of trademarks.
Well-known trademarks are easy to identify. Consider Stella Artois, Chiquita, Coca-Cola, Google, Apple, Microsoft, or Colruyt, whose names as well as figurative elements (the logo) are easily recognisable.
There is also a special form of trademark which is not individual but collective. These are signs which are not used to distinguish the products and services of a particular company but which different companies may use to distinguish one or more common characteristics of their products or services. An example is the ‘Woolmark' trademark. For the same product (for example, beer) or for a particular service (for example, online book sales), there may be other signs which are not necessarily all “trademarks” and it is important to make this distinction because these other signs are subject to different legal regulations. For example, this is the case for geographical indications or quality labels, domain names, business names or commercial names.
The function of a trademark
Trademarks are used to distinguish products or services. Thanks to the indications given by the trademark, consumers as well as other companies (producers, merchants, service providers) know which company provided the products or services and thus which company is responsible for them. The notion of quality is closely linked as well. Consumers expect that products from the same brand meet the same quality standards.
Of course, a trademark may also have an important marketing role. Thanks to the indication of the trademark, the consumer’s choice will be influenced, but it is important for the consumer to be able to identify the link between the trademark and an individual company. In short, it is extremely important for companies to register and protect their trademarks.
How can I obtain a trademark?
If you would like to obtain a trademark for a sign, it is not enough to merely use this sign for certain products and services. You must first register this sign for certain categories of products and services. Trademark protection is not automatic, unlike copyrights (for example). According to where you wish to register trademark protection, you must use the procedure for a Benelux trademark or a Community trademark. If you would like trademark protection outside of the European Union or if you would like protection only within certain European Union countries, you may potentially use the international procedure, to avoid having to file separate requests in trademark offices of all of the countries concerned.
Before filing a trademark application, check to make sure that your sign meets the conditions for protection , i.e. distinctive character, availability and lawfulness of the trademark. Most countries apply similar conditions.
Why register a trademark?
Once your trademark is registered, you will have exclusive rights to use the now-protected sign. The most important attribute of these rights is the “right to prohibit”. You may prohibit others from using an identical or similar trademark for identical or similar products or services. Once your trademark is well-known, you may even prohibit the use of the sign by others for non-similar products or services (i.e., outside of the categories for which the trademark or brand name is registered).
Trademark protection ensures that only you can use the protected sign. If you do not register a sign as a trademark, others might do so. They may then, in general (there are exceptions), prohibit you from using the trademark!
The exclusive right provided by trademark registration may also generate additional revenue. This may occur with licensing or transfer agreements.
Finally, if third parties use your trademark without your authorisation or benefit from the recognition of your trademark, you may be able to file certain claims and procedures on the basis of your trademark registration.
- What can be trademarked? Words, slogans and logos as well as colors, sounds, smells and tastes? See examples and types of trademarks.
- What conditions must the sign meet to be registered as a trademark? See the conditions of protection.
- What rights are provided by a trademark?
- What is not covered by trademark protection? What acts must you tolerate as the proprietor of a trademark? See the exceptions.
- Is it better to request a trademark via the Benelux, Community or international procedure? How can I obtain a trademark?
- For how long is a trademark valid? See the length of validity.
- Where can I obtain expert advice?
- What must I do if changes are made to my trademark (transfer, name change, seizure, etc.)? See the administrative formalities.
- What happens in case of breach of trademark? How can I ensure that my rights are protected? See counterfeits and the enforcement of rights.
- Is it possible to lose trademark protection? Can a trademark be nullified? See how does trademark protection end?
- How much does a trademark cost? What taxes must be paid? See the taxes.
- Where can I see which trademarks have already been filed or registered? See trademark search: databases.
- What are collective trademarks?
- What are the business name and commercial name?
- What are geographical indications, ‘traditional speciality guaranteed’ and other labels?
- Convention Benelux en matière de propriété intellectuelle (marques et dessins ou modèles) du 25 février 2005 (MB 26.04.2006)
- Regulation N° 207/2009 on the Community trade mark (codified version)