Intellectual property rights are confusing even to those familiar with the niche. To a prospective entrepreneur, they present yet another confusing decision to be made: do you spend the time and effort to trademark your brand? Or do you hope that nobody mimics your company and potentially confuses your consumers?
Different types of trademarks
The terms “trademark” and “copyright” are often used to describe the process of legally protecting an idea, but there are actually many different types of trademarks, with different features and types of protection. Trademarks, specifically, are ways to distinguish your business’s goods from those of other businesses
; for example, seeing the logo for a fast food franchise gives you expectations for the type of food you’ll find there. It wouldn’t be fair (or legal) for a subpar restaurant to use those signals when advertising its own food and service.
So what are the different types of trademarks?
• Generic marks.
Generic marks are unable to receive protection because they fail to distinguish one brand’s goods from another, instead of specifically designating one source of the goods. For example, people have used the word “Jacuzzi” to refer to any hot tub, even though Jacuzzi is the name of a business that produces one specific type of hot tub
• Descriptive marks.
A descriptive mark gives you better protection because it describes the goods you’re trying to sell. However, if those descriptions can refer to a broad class of items, it may not distinguish you as well as other marks, and is harder to protect.
• Suggestive marks.
Suggestive marks inherently refer to some quality of the goods that are being sold, but aren’t overt in their descriptions, making them easier to protect. These marks are slightly ambiguous, but still refer to the goods in some way.
• Fanciful and arbitrary marks.
Fanciful or arbitrary marks offer the highest level of protection, because they appear to have no connection to a good other than to distinguish it from competitors’ goods. For example, many companies have trademarked a specific colour to be associated with their brand
— such as Coca-Cola’s red or Tiffany’s blue. These colours have nothing to do with the goods these businesses sell, but distinguish those goods from other competitors. Do you need a trademark?
Not all businesses will need a trademark, so how do you know if you need one?
• If you’re a local business owner with no plans for expansion
, you may not need to file for a trademark. Intellectual property rights cover the basics of your brand, goods, and image, and since you’ll be operating in only one geographic area, it’s unlikely that any brands will move into your territory or attempt to capitalise on your reputation elsewhere.
• If you have a number of competitors
, and you plan to expand your operation, it’s a good idea to file for a trademark (especially suggestive or fanciful marks). This adds a layer of distinction to your brand, and protects you if you start to see massive success. Without a trademark, you may be left unprotected.
• If your product offers a signature property that your competitors can’t replicate
, your customers will want some visual trigger to let them know what they’re getting. For example, if you’re selling a food product with a proprietary recipe, you’ll likely want some kind of trademark to signal that unique flavour and unmatched quality to your customers. How to get started
In South Africa, all forms of property law, including design, copyright, patents, and trademarks, are handled by the Companies and Intellectual Property Commission
(CIPC), which is a combination of previous organisations CIPRO and OCIPE.
There, you can download and fill out the applications necessary to begin filing your trademarks, if applicable. Because trademarks can apply to 45 different classes
, you may consider getting legal help with the process; be aware that the process can last up to several weeks, depending on the nature of your request. However, once you’ve completed the process for getting a trademark, you can rest easy—a trademark offers lifetime protection, so long as you renew your registration every 10 years.