by Seno Namwandi
Names enable us to identify different people, places, countries and things. Birth certificates, title deeds or other legal arrangements often legitimatize these names. Similarly, business names enable us to identify one enterprise from another. Business names are legitimized through the intellectual property system called trademarks.
Trademarks are defined as devices that are used to distinguish goods or services of one enterprise from another enterprise. It is the legal right to make use of a name, word, number, logo or slogan, and recently smell and sound or combination thereof to differentiate one product or service from that of others in adjacent industries and in general. Not all devices are eligible for protection, the criteria that renders a device as eligible are functionality in distinguishing the product or service – simply, does this name, logo etc. identify the product or service as unique from another product or service. For example, we are able to differentiate Nike and Puma, as two distinct companies operating in the same retail sector - sport clothing - by the different use of words and slogans. Secondly, a trademark should not be confusingly similar or identical to existing trademarks. This criterion can be challenging to assess. However, the deciding factor is that a trademark operating in one class or sector should not be confused with another, an example would be a sporting shoe company called “Mike” or “Quma”. The slight change of a letter or color in the overall brand would render it confusingly similar to Nike or Puma. Lastly, it should not be offensive, immoral or derogatory; simply the use of words deemed as inappropriate will not be registered.
Trademarks are protected for a limited duration; but they are subject to perpetual renewal meaning, a registered mark is for 5 (7) years subject to annual renewal. The limitation in protection allows for deregistration or the amendment of the name in processes of rebranding etc.
Branding has become a core function of many a marketing strategy. Registering a trademark is the foundation of building a strong brand as it legitimizes the use of the trademark and enables the exclusion of use of the trademark by other entities. Registrations of trademarks also provides security for the company’s brand investment as it gives the company leverage in the event that another company tries to ride on the established brand. Due to the important role of brands in creating customer loyalty, some companies unfortunately try to erode market share by using brands that are confusingly similar in order to gain a following of their own. However, with the rights conferred to trademark owners, instances like this are protected legally.
Choosing a name that counts is beneficial in overall market valuation and ensuring market share. It is important to invest in trademark registration and overall branding of your company for these purposes.
Seno Namwandi is one of the pioneers of Intellectual Property (IP) in Namibia. Her recent achievement was being selected as 1 of 16 Mandela Washington Fellows from Namibia for 2018. She currently serves as the youngest director on the board of the Business Intellectual Property Authority (BIPA) in Namibia. Seno is also employed full time at the International University of Management (IUM) where she serves as the Director of Innovation and IP. Seno has a Masters degree in IP from Africa University, Zimbabwe and other postgraduate certifications in IP. She obtained her Bachelor’s degree in Molecular Biology and Biotechnology from Stellenbosch University, South Africa. LINKEDIN | EMAIL
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