What is a trademark?
A trademark is a sign that is used by a company to identify its products and services. If they see this sign, the public will be able to distinguish those products and services from others placed on the market by a different company.
A trademark is, therefore, a "sign". And this sign can take various forms, including words, abbreviations, combinations of numbers, slogans, images, shapes and colours, and even sound clips. See the types and examples of trademarks.
Examples of known trademarks easily come to mind. They include Vittel, Duracell, Armani, Coca-Cola, Google, Apple, Microsoft, and Colruyt, for whom the name but also the figurative element (the logo) are immediately recognisable.
Keep in mind that there are two special types of trademarks that do not serve as individual trademarks: collective trademarks and certification trademarks. These are signs that do not distinguish the products and services of a specific company, but which different companies can use for their products or services. Collective trademarks may be used by members of a specific professional association who have been granted authorisation to use them; whereas certification trademarks are used to distinguish one or more common characteristics (e.g. quality) of certain products or services. The holder of a certification trademark cannot use the trademark itself for its own products or services. With regard to the same product (e.g. beer) or a particular service (e.g. the sale of books online), 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 rules. This is the case, for example, for geographical indications or quality labels, domain names, company names or trade names.
The purpose of a trademark
The purpose of a trademark is to distinguish a product or service. Thanks to the indications given by the trademark, consumers, but also other companies (producers, retailers, service providers) know from which company the products or services come, and therefore which company is responsible for the products and services in question. The quality aspect is closely linked in this respect. Consumers expect products of the same trademark to meet the same quality standards.
Of course, a trademark can also have an important advertising role. Through the indication of the trademark, the choice of the consumer will be influenced, but it is important that the consumer can identify the link between the trademark and a given company. In short, it is extremely important for companies to register and protect their trademarks.
How can I obtain a trademark?
If you wish to obtain a trademark right for a sign, it is not enough (to be the first) to use this sign for certain goods or services. You first need to register this sign for certain categories of goods and services. Trademark protection does not therefore come about automatically, unlike, for example, copyright. Depending on the territory where you wish to have trademark protection, you need to follow the procedure for a Benelux trademark or a European Union trademark. If you wish to have protection outside the European Union or if you only want protection in certain European Union countries, you can follow the international procedure, to avoid having to file separate applications in all the trademark offices of the countries in question.
Before deciding to file a trademark application, make sure that your sign meets the conditions for protection, namely the distinctiveness, availability and legality of the trademark, which apply in a similar way in most countries.
Why register a trademark?
Once your trademark is registered, you have certain exclusive rights to use the protected sign. The most important attribute of those rights is "the right of restriction". You can prohibit third parties from using the same or a similar trademark, for the same or similar goods or services. Once your trademark is in good standing, you can even oppose the use of the sign by other parties for goods or services that are not similar (i.e. outside the categories for which the trademark is registered).
Trademark protection also guarantees you the freedom to use the protected sign yourself. If you do not register a sign as a trademark, you run the risk that others will. They could then, as a general rule - there are exceptions - prohibit you from using the trademark!
The exclusive right obtained by registering the trademark may also allow you to generate additional income. This may be through the granting of licences or by transferring the trademark.
Finally, if third parties use your trademark without your authorisation or take advantage of the reputation of your trademark, you may take certain actions and proceedings based on your trademark registration.
- What can qualify as a trademark? Words, slogans and logos, but also... colours, sounds, smells and tastes? See examples and types of trademarks.
- What conditions does the sign need to meet to be registered as a trademark? See conditions of protection.
- What rights does a trademark confer?
- What does not fall within the scope of trademark protection? What actions should you tolerate as a trademark holder? See the exceptions.
- Is it better to apply for a trademark via the Benelux procedure, the procedure for a European Union trademark or the international procedure? See how can I obtain a trademark?
- How long is a trademark valid? See term of validity.
- Where can I get expert advice?
- What should I do if there are changes regarding my trademark (transfer, change of name, seizure, etc.)? See administrative formalities.
- What happens in the event of trademark infringement? How can I enforce my rights? See counterfeiting and enforcement of rights.
- How does trademark protection end? Can a trademark be declared invalid? See how does trademark protection end?
- How much does a trademark cost? What fees do I have to pay? See fees.
- Where can I search for trademarks already filed or registered? See trademark databases.
- What are collective trademarks and certification trademarks?
- What are company names and trade names?
- What are geographical indications, traditional specialities guaranteed and other quality labels?
