What is a Trademark?

A Trademark can be any word, sentence, symbol, design or combination of these elements that identifies your goods or services. Three-dimensional shapes, including trade dress, packaging and the shape of the product, sounds, holograms, colours, may also constitute a Trademark, provided that they are capable of being represented in a clear and precise manner.

A Trademark is the means by which consumers recognise a company’s product or service in the marketplace and distinguish it from those of other companies.

The registration of a trademark confers exclusive rights over the sign and enables its owner to enforce it against confusingly similar marks, imitations or counterfeits. However, trademark registration does not confer absolute rights over the sign: it does so in relation to specific goods or services. Moreover, the protection conferred is territorial: a Spanish national trademark covers the territory of Spain (including the Balearic Islands, the Canary Islands, Ceuta and Melilla) and an EU trademark covers the 27 countries of the European Union. Protection can be applied for on a country-by-country basis or on a unitary basis in those regions that have a common regulation; there is also an international trademark registration system that covers more than 125 countries.

For a sign to be eligible for registration as a Trademark it must be distinctive, i.e. it must not consist exclusively of descriptive or generic indications and must be distinguishable from earlier trademarks for identical or similar goods or services. Marks with a high degree of creativity are more effective and easier to protect than allusive marks.

In the European Union, including Spain, registration is the normal way of acquiring protection for a Trademark. Mere use is not, except in the case of well-known signs or signs having a reputation.

A Trade Name can also be registered with the Spanish Patent and Trademark Office. It does not have to coincide with the name of its owner and protects the activities of the latter.

Both Trademark and Trade Name applications must relate to goods and/or services ordered according to the Nice International Classification containing 45 Classes.

Before adopting and applying for the registration of a Trademark or Trade Name, it is important to carry out an availability search to ensure that it has not already been registered, in identical or similar form, by a third party. Access to public and/or private databases is required, to carry out these searches. We have subscriptions to most accurate, with great scope.

When a trademark is registered, the ® or “trademark” symbol can be used to inform third parties about the registration protection and warn them of the possible consequences that have to infringe it.

Related news