Understanding Industrial Property: Protecting your trademark
Correspondent | Friday April 29, 2016 10:47
They are found in the watch you wear, the type of fridge you use, the supermarket you are loyal to, and in every single product that we as consumers purchase. Trademarks are part of the branch of intellectual property called Industrial Property.
But what is Industrial Property?
Industrial Property is part of the wider body of law known as Intellectual Property, which exists to protect ‘creations of the human mind.’
Industrial Property protects trademarks, patents, industrial designs, layouts of integrated circuits, utility models, geographical indications, handicrafts and traditional knowledge.
This is the first of a series of articles on Industrial Property. In this article we will focus on Trademarks, and how registering them, can be beneficial to business owners.
According to the World Intellectual Property Organisation (WIPO) a trademark is any sign that can be used to differentiate the goods and services of one business from those of another business.
A trademark can be a sign, a shape, a sound, words, colours or any combination thereof. Before buying any product, a consumer consciously looks for a trademark that he or she is familiar with, as it provides him/her with confidence of consistency in quality. A trademark plays a significant contribution to the development of the ‘brand’ of any organisation. In Botswana, Trademarks are registered by the Companies and Intellectual Property Authority (CIPA), and are protected through the Industrial Property Act, 2010. CIPA registers trademarks for protection locally, and regionally through the Banjul Protocol or internationally through the Madrid System. Fees for registration of Trademarks locally range from P150 to P360 depending on the size of the organisation and the type of trademark being registered.
Why Register a Trademark?
We have already mentioned that consumers consciously look for a familiar trademark when purchasing any product. This makes the trademark the most valuable asset of any company; this therefore begs that as a business owner you must take all necessary steps to protect your trademark from unauthorised use. Registering your trademark means you legally own it, and you have the right to stop others from using similar or identical marks. It means that when customers look for your products, they will not be confused into buying your competitor’s products because the trademark looks the same. As your business grows, your trademark becomes more valuable, opening up opportunities for additional income through licensing, franchising and regional and international expansion. In Botswana we have a lot of franchises operating in our country mostly originating from other countries, a business model which derives its existence from trademarks.
The Industrial Property Law uses a first-to-file approach, which means that as soon as you develop your trademark, you must register it to prevent late-comers from registering similar or identical trademarks before you. As you register companies and associate them with any mark, words, logos etc ensure that the marks are registered to enhance your protection.
Trademark Infringement
Trademark infringement typically occurs when another business uses a similar or identical trademark on their products without authorisation from the trademark owner. The main reason for infringing on trademarks is usually to confuse customers into thinking it is the same product that they have become accustomed to, while the reality may be that the product may be of an inferior quality. Products developed and given trademarks without authorisation from the trademark owners are called counterfeits or fakes. Counterfeit products range from shoes, to handbags to cellphones - in fact no product is immune from counterfeiting. On a more serious note, counterfeits have been seen in medication, infant foods, motor spares and even cigarettes. The consequences of consuming these illegal products are dire, as they are produced without adhering to any standards, care for the environment, health or even concern for human life.
Consumers can protect themselves by looking out for signs of authenticity before buying products. Most trademarks owners provide guides for differentiating between fake and real labels on their websites. In most instances, a much lower price should ring a bell as to the true authenticity of a product.
Botswana, like any other country is not immune to the problem. Everyone who was around in the 1990s remembers the fake Adidas, Nike, and Reebok trainers that were rampant in the market. Today the problem is still there, albeit a little more subtle because the infringers try a little harder to imitate the real product as much as possible.
The Industrial Property Act gives trademark owners the right to institute court proceedings against anyone infringing on their trademarks. A registered trademark certificate will provide sufficient evidence of ownership, and damages will be awarded if the court finds that infringement has occurred. The seized counterfeit goods may be destroyed at the instruction of the court.
As a business owner you are encouraged to develop and register your trademark. Registration of your trademark gives it protection against unauthorised use and gives you the right to take action should you find others infringing on your mark. Protection also means that competing businesses cannot register or use similar marks resulting in your customers being able to easily identify and purchase your products in the marketplace. Lastly, a well managed trademark contributes to the brand of your organisation, making it one of the most valuable assets of the business.
Marietta Magashula
Communications and Awareness Manager - CIPA mmagashula@cipa.co.bw