Below is an excerpt from John McKeown's December 2017 Monthly IP Blog.
A brand owner should understand how the trademark registration system works since, in the vast majority of cases, the brand name can be protected under the Act as a trademark. In addition, when selecting a brand name the way in which the system works must be considered since the decisions made will affect the rights potentially available. For example, choosing a brand name that is clearly descriptive of the character or quality of the goods or services in association with which it is used will have consequences.
Obtaining a trademark registration is of fundamental importance and facilitates the protection of the brand name. The rights available under the Act are significantly broader than the common law rights associated with a brand name.
The Act provides for a public registry system which is national in scope, showing proscribed information for each registered trademark. The Act facilitates the protection of trademarks by granting exclusive rights to owners and providing for public notice of the rights. The goodwill associated with brand names is recognized as among the most valuable of business assets. However, whatever their commercial evolution, the legal purpose of trademarks continues to be their use "to distinguish goods or services manufactured, sold, leased, hired or performed by the trademark owner from those manufactured, sold, leased, hired or performed by others" within the meaning of section 2 of the Act.
A trademark is a guarantee of origin or source and inferentially, an assurance to the consumer that the quality will be what he or she associates with a particular trademark. The Act is, in a sense, consumer protection legislation.
The Act also rests on principles of fair dealing and is sometimes said to hold the balance between free competition and fair competition. In applying its provisions the interests of the public and other merchants as well as the interest of the trademark owner must be considered.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
