Defending your Trademark Against Infringement: TRADE MARKS ACT 1994
The owner of a trademark can legally defend the registered Trademark against infringements. If the trade mark is not registered, it can still be protected if it has been in use for a period of time and which has acquired local distinctiveness. This gives it (Prior Rights).
Whether a trademark is defendable depends upon various factors:
- Similarity of the trade marks involved, i.e. font type, colour, logo, and text.
- Similarity of the products or services involved. This refers to classes the trade mark is under, i.e. if the infringed trade mark is registered under a same class, such as furniture.
- Whether the trademark has acquired distinctiveness, i.e. it is highly recognisable as a brand.
If your trade mark is registered then it is relatively simple to defend in a court of law. Most infringers will back down if their trade mark is unregistered and they realise the court costs involved.
Rights have been recently extended with regard to well-known trade marks:
This means that you will still stand a chance of defending your trade mark by law.
The Trade Marks Act 1994 states: “a person infringes a registered trade mark if he uses in the course of trade 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”
Also: ” A person may also infringe a registered trade mark where the sign is similar and the goods or services are similar to those for which the mark is registered and there is a likelihood of confusion on the part of the public as a result”.
A registered trade mark can also be infringed where a sign is identical but the goods are dissimilar if the trade mark has a reputation in the UK and its use takes unfair advantage of, or is detrimental to, the mark’s distinctive character or reputation.
If the infringer has been trading goods or services on the back of your trade mark then you can apply to the courts for: Order for delivery up of infringing goods, material or articles. Trade Mark Act: 2014.
(1)The proprietor of a registered trade mark may apply to the court for an order for the delivery up to him, or such other person as the court may direct, of any infringing goods, material or articles which a person has in his possession, custody or control in the course of a business.
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