Protecting your Brand, the need for Trademarks
A brand is a unique product, service, concept, design, sign or symbol which is used to identify a product or service and differentiate it from its competitors. A brand is typically used in marketing, and the more effective you are marketing your brand, the more lucrative it can be for you.
How do you protect this brand that you have worked to build? Intellectual property, in particular trademarks, can aid in achieving this. Intellectual property governs and protects the use of your mental and creative labour by granting you protective rights over intangible assets including designs, inventions, artistic works, images, and computer programs.
What are trademarks?
In Jamaica trademarks and trademark protection are governed by the 1999 Trademark Act of Jamaica “the Act”. A trademark as defined by the Act as a sign that graphically represents specific persons or business entities and serves to identify the goods or services they provide, distinguishing them from those of others. Trademarks may also be used as a geographical indication of where a product may have originated. The primary requirement for a trademark to be registered is that it has to be unique, and have a “distinguishing” feature.
Trademarks are registered at the Jamaica Intellectual Properties Office (JIPO). Once the Trademark is registered the Proprietor is granted fundamental rights for his trademark under the Act. The registered owner is given exclusive use and benefits of the mark and any use of this mark without his consent will be considered an infringement for which legal action may be taken. A trademark usually lasts for ten years upon expiration can be renewed by the owner at a fee.
Who can register a trademark?
Anyone can register a trademark. It is recommended that a search is conducted on the availability of the mark. A search is recommended as marks that have been previously registered in a class or similar to one already registered will not be accepted. The applicant will then submit a TM1 form along with the mark and pay the required fees to JIPO. If the application is accepted and satisfies the requirements of the Act, then the applicant will be notified and the application published in the Gazette for anyone to oppose. If no one opposes, then the mark will be protected for ten (10) years with an option to renew at the expiry of the ten years.
If anyone can register why do you need attorneys?
First and foremost, not all marks are capable of being registered. An Attorney could save time and money by giving you the appropriate legal advice needed to trademark your brand. Also, the attorney will be capable of advising you on which classes are best to register your marks in. He or she will also be able to explain to you why it would be advisable to register in more than one class based on your business to prevent a company registering a similar mark in another class. The Attorneys will also be able to inform you of your rights as proprietor after you have trademarked and how to enforce your right as proprietor if there are any infringements. There may also be ways of earning additional income off your trademark by licensing your mark. For this to be done the trademark holder must ensure that certain quality controls of the product or service are maintained and that the product offered is of the same standard to protect his reputation and goodwill in the market.