Relying on Unregistered Trade Marks
Many businesses use trade marks which have not been registered in their name. As a consequence, true ownership and right of use, is malleable and can be influenced by the actions of others. This is in contrast to registered trade marks which secure title and provide exclusive rights of use to the registered owner. Consequently, all businesses should ensure all their trade marks are registered in their name.
This all too common situation sometimes arises because businesses incorrectly assume that company registration (when the company was incorporated) provided them with rights to their name. This is not the case. In other situations it is mistakenly assumed that someone else in the firm registered the TMs a while ago, or simply (and often) a business fails to recognise what its trade marks are. Essentially a trade mark is anything being used to differentiate your products or services from those of another. Many businesses think that their only trade mark is their company name when in fact they have been quite innovative in developing other differentiating characteristics which are, in fact, trade marks.
It is advisable for any business, if it has not already done so, to have an IP audit with an appropriately skilled attorney or professional to identify their trade marks and to ensure they are registered. This may be a free or subsidised service, and can save a significant amount of money in terms of trying to reclaim trade marks whose title or continued use may be in contention.
An unregistered trade mark may acquire reputation and be able to provide you with protection, but only in those geographical areas where you have reputation. It is not uncommon for traders in the North Island to find they cannot use their unregistered trade mark in the South Island (and vice versa) because someone else (previously unknown to them) is using the same mark there. If someone else applies to register your unregistered trade mark in their own name, they may be able to stop you from expanding your reputation (arising from product sale or service) outside of the region in which you already have a reputation. These should be situations which do not occur at all, but do with some frequency. By early registration of your trade marks you avoid the expensive to resolve issue of who owns what, and who should be entitled to do what.
Remember also that only some countries provided unregistered rights, so you may have no rights overseas.
Many businesses use trade marks which have not been registered in their name. As a consequence, true ownership and right of use, is malleable and can be influenced by the actions of others. This is in contrast to registered trade marks which secure title and provide exclusive rights of use to the registered owner. Consequently, all businesses should ensure all their trade marks are registered in their name.
This all too common situation sometimes arises because businesses incorrectly assume that company registration (when the company was incorporated) provided them with rights to their name. This is not the case. In other situations it is mistakenly assumed that someone else in the firm registered the TMs a while ago, or simply (and often) a business fails to recognise what its trade marks are. Essentially a trade mark is anything being used to differentiate your products or services from those of another. Many businesses think that their only trade mark is their company name when in fact they have been quite innovative in developing other differentiating characteristics which are, in fact, trade marks.
It is advisable for any business, if it has not already done so, to have an IP audit with an appropriately skilled attorney or professional to identify their trade marks and to ensure they are registered. This may be a free or subsidised service, and can save a significant amount of money in terms of trying to reclaim trade marks whose title or continued use may be in contention.
An unregistered trade mark may acquire reputation and be able to provide you with protection, but only in those geographical areas where you have reputation. It is not uncommon for traders in the North Island to find they cannot use their unregistered trade mark in the South Island (and vice versa) because someone else (previously unknown to them) is using the same mark there. If someone else applies to register your unregistered trade mark in their own name, they may be able to stop you from expanding your reputation (arising from product sale or service) outside of the region in which you already have a reputation. These should be situations which do not occur at all, but do with some frequency. By early registration of your trade marks you avoid the expensive to resolve issue of who owns what, and who should be entitled to do what.
Remember also that only some countries provided unregistered rights, so you may have no rights overseas.