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Selecting Business Names and Intellectual Property Law

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Registration of a company name, domain name or using a name in a business for a period of time does not give rise to a right to use the name in association with a business or a product.

Simply because the name does not appear on a Google search also does not mean that it can be used. Recently Google encountered problems of their own when a search failed to reveal the use of the word GMAIL in respect to electronic messaging.

It is intellectual property rights, namely trademark law and the law of passing off that prevent businesses using names used in business.

When an owner of a trade mark finds out about unauthorised use of their trade mark, it may mean having to rename the company, changing stationery, packaging and other branding which appears in association with goods and services.

These aspects usually need to be changed promptly to avoid legal proceedings for trade mark infringement and payment of the trade mark owners’ legal costs.

Benefits of Trade Marks

Owners of registered trade marks have superior rights to identical and deceptively similar trade names that are not registered.

Obtaining a registration makes it more difficult for competitors to use a similar trade mark. In our experience, there are significant cost savings relying on trade mark rights to stop a competitor or pirate doing the wrong thing with registered trade marks, as opposed to relying on unregistered trade marks rights and passing off.

The registered trademark adds a layer of legal protection to prevent other businesses using the trademark: registered trade mark rights give businesses the exclusive right to use a distinctive sign in association with their business, in connection to specific goods and services.

Registrable signs may be a name, slogan, logo, scent, a sound, a colour, hologram or even a shape. Action signs, such as a rotating globe, are also registrable provided they are distinctive.

Costs

Typical legal costs for a UK application range between £350 and £400. The application usually takes between 8 – 12 months. The basic fee charged for trade marks by the UK Trade Marks Registry is £200.

The official fees for filing a standard Community Trade mark application with coverage in 25 countries generally range between £2,500 - £3,000. Costs vary with the breadth of protection required.

Leigh Ellis is an intellectual property lawyer with Gillhams Solicitors in London. He provides legal advice on trade mark infringement, applications, and intellectual property litigation.

Posted October 23, 2006
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