Trade marks are governed by the Trade Marks Act 1994. Section 1 of the Act defines trade marks as ‘any sign capable of being represented graphically which is capable of distinguishing goods or services of one undertaking from those of other undertakings. A trade mark may, in particular, consist of words (including personal names), designs, letters, numerals or the shape of goods or their packaging.’
Once a trade mark is registered it is a ‘property right’ and the owner of the registered trade mark has the ‘rights and remedies’ provided by the Act.
A trade mark must be unique and have a distinctive character. It cannot be similar to a mark already registered for the same class of goods or services. It cannot be offensive, misleading, non-distinctive or to like state symbols. It cannot be a three-dimensional shape related to the trade mark or be descriptive of the goods or services it is associated with.
Registration is overseen by the UK Intellectual Property Office. Registration lasts for ten years but it can be renewed.
The owner of a registered trade mark can prevent others from using it without consent within the United Kingdom (UK). Infringement involves using the trade mark itself or ‘a sign which is identical with the trade mark in relation to goods or services which are identical with those for which it is registered’.
The actions available to the owner of a trade mark that has been infringed includes ‘all such relief by way of damages, injunctions, accounts or otherwise is available to him as is available in respect of the infringement of any other property right’. Orders for erasure and surrender of infringing goods are also available.
A website is the foundation of a business’s online presence and website owners invest substantial amounts of resources and time into the creation and development of its websites. The internet has enabled businesses to increase the reach of their marketing and sales effort. However, this has also increased the possibility for competitors to copy parts or imply association with the services or products offered by a well-known brand. Intellectual property (IP) is a vital asset for an online business and its brand. Traders must ensure that their own IP is protected and that they and their users do not infringe any third-party intellectual property rights.
Along with protecting your IP you should include an IP notice on your website. An IP notice informs the public that the work is protected by copyright. It identifies the copyright owner and shows the year of first publication. An IP notice can assist the owner if the work is infringed as it provides evidence of publication and can limit a claim of the defence of innocent infringement and provide evidence for the damages claim.