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Trademark rights are a kind of intellectual property right that can significantly benefit your business. However, you do not necessarily need to register a trademark to enjoy its corresponding powers. Therefore, this article will provide general information and explain how you can enforce unregistered trademark rights.
What are unregistered trademark rights?
Trademarks serve as unique identifiers for your business. Customers use them to recognize your goods or services. Accordingly, a trademark acts as a “badge of origin”, indicating to potential customers that your company is the source of the goods or services you provide. In particular, marks may include a variety of elements, such as:
- colors; Where
- a combination of these.
In New Zealand, a trademark is a kind of intellectual property that your business can own exclusively.
In particular, to take advantage of certain types of intellectual property rights, you must formally register your property with the New Zealand Intellectual Property Office (IPONZ). Trademarks are an example. However, you may have valid ownership rights to a trademark without official registration. These would then be unregistered trademark rights.
You can indicate your ownership of an unregistered mark with the symbol “.
Ultimately, you can use unregistered trademarks as part of your company branding without major issues. However, if another party disputes your ownership or attempts to copy your unregistered trademark, this can complicate matters.
Unregistered Trademarks and Your Ownership
For registered intellectual property rights, IPONZ maintains a record of a company’s official ownership of such rights. However, in the case of unregistered trademark rights, you cannot rely on this official document. Therefore, to take advantage of unregistered trademark rights, you need to find a method to prove your ownership. You can do this by establishing that:
- you have used your brand enough to build a solid reputation in the market;
- no other party has a stronger right of ownership than you; and
- customers recognize your business by your unregistered brand.
If you have been using your brand for a long time and have established a solid reputation in the market with your customers, your ownership rights are more easily verifiable. In particular, you have generated enough awareness in your brand to make it a badge of origin for your company. Evidence you can use to support this may include:
- Customer testimonials;
- sales and advertising figures;
- newspaper and magazine articles about your business; Where
- reviews of your branded products.
However, if another party has already registered a mark that is the same or similar to yours, they may have greater ownership rights.
How do I enforce unregistered trademark rights?
If someone copies your unregistered mark or tries to imitate your products or services by using it, you may have legal avenues. With unregistered trademark rights, the law grants you certain powers.
In any such legal proceeding, you only have good cause if the other party does not have a legitimate right to use the unregistered mark.
Therefore, once you can establish that you are the owner of an unregistered mark, you have two options for enforcing your rights. You may either bring an action for “passing off” or an action under the Fair Trade Act. In fact, you can try to claim protections under both. The paragraphs below set out the nature of these two legal actions.
What does overriding mean?
Deception is an illegal action in commercial law. Essentially, if another party tries to use your unregistered mark in a way that leads consumers to believe their goods or services are yours, that’s misrepresentation. If you can prove that you have sufficient goodwill for that brand and that the actions of that other party have caused damage to you (or will cause damage to you), then that action may be applicable.
Misleading and misleading behavior
On the other hand, the
Fair Trade Act is a law that regulates how merchants interact with their customers and each other. In particular, it prohibits misleading and deceptive conduct. If another party lied and claimed your trademark as their own, you may be able to sue under this law. However, unlike deception, you don’t need to prove that their actions caused you measurable harm.
Despite this, both actions require that you have sufficient business reputation for your unregistered mark. You will need to provide proof of your business reputation in court.
Key points to remember
It is not necessary to register a mark to obtain the corresponding protection rights. However, you must prove that you own an unregistered trademark and establish that you have sufficient commercial reputation. Otherwise, you may not be able to enforce the rights of an unregistered trademark if another party copies or imitates your trademark. Ultimately, trademark registration puts you in the most advantageous position to protect your interests.