Generally speaking, a trademark is a word, symbol, phrase, or device which uniquely identifies a particular company or individual. Therefore, it can also be a design, or a combination of words, phrases, symbols, or designs. A trademark can take just about any form provided that it is: distinctive, and capable of being represented graphically. A trademark is a mark used in relation to goods or services for the purposes of distinguishing those goods or services from similar goods or services connected with other businesses. Not only should a trademark help with identifying your goods and services but it should further serve to distinguish the source of the goods of one party from those of others. 
A word that is descriptive of the goods or services and therefore common in the trade would not be capable of distinguishing and would not qualify for registration. An example of a descriptive mark is MUSIC MAGAZINE used for music magazines or STEAKHOUSE for a restaurant. Invented words like KODAK and XEROX are good examples of words that are inherently capable of distinguishing. 

A registered trademark confers upon you the exclusive rights, in the country of application, to use your trademark in respect of the goods or services for which it was registered. This will prevent unauthorized use of your trademark by others in your industry. Trademark registration provides official notice to others that a trademark is already taken; as a result, a company that later adopts an identical and/or confusingly similar trademark cannot claim ignorance of the mark. A trademark owner receives the presumption of being the valid owner of the mark and therefore, a trademark registration further reduces your chances of becoming involved in potentially costly litigation. Many businesses now treat a trademark as a capital asset. Your registered trademark can easily be commercialized through licensing agreements such as franchising. 

The full name, physical address, and nationality of the trademark applicant. The goods and/or services for which protection is sought i.e. in relation to what goods or services is the mark going to be used or is being used.  If the trademark is a logo mark we require 10 clear prints measuring 8 x 10 cm of such logo. This may be e-mailed to us and we will make the necessary copies. The only documentation required is a Power of Attorney, signed by the applicant authorizing our firm to act on your behalf in respect of trademark matters. No authentication is required. It is not, however, a prerequisite that such Power of Attorney accompanies the application form. It may be placed on file at a subsequent stage. General Powers of Attorney may be utilized in which case separate Powers of Attorney need not be lodged. Please note that we need the original signed Power of Attorney form to submit to the Trademarks Registry. A faxed or emailed copy will not suffice. 

1. After filing a trademark application, it is examined by the Trademarks Registry, both as to the distinctiveness of the trademark itself and as to possible conflict with the existing trademarks on the Trademark Register. (Unfortunately, delays are being experienced at the Trademarks Registry. A period of approximately 9 to 12 months elapses from the date of filing of an application until the first examination by the Registrar.) 
2. After examination, official action is issued in which the Registry indicates whether, and subject to what conditions, it would be prepared to accept and then register the mark. 
3. Once the Registry is satisfied that a trademark can proceed to registration, it will issue a notice of acceptance of the application. Thereafter, an advertisement will be arranged in the Patent and Trademark Journal. 
4. In the advertisement, the application is open to opposition by interested parties for a period of three months. If a party believes that it has grounds for opposing, an extension of the opposition period is usually requested prior to the filing of formal notice of opposition. Once the threat of opposition is resolved or withdrawn, the certificate of registration will be issued. Alternatively, if there is no opposition after three months have expired, the trademark will proceed to registration. 
5. Once the application proceeds to acceptance and advertisement, a further 9 to 12 months could pass before the certificate of registration is issued. It takes between 30 and 36 months before the registration certificate is received. 
6. On completion of the registration process, rights in the trademark commence from the date of filing of the application and last for ten years. A trademark is renewed every ten years. 

The ™ symbol (or the words “Trade Mark”) may be used alongside registered and unregistered trademarks. The ® symbol (or the words “Registered Trademark”) should only be used in respect of a trademark that has been registered. It is an offense in terms of the Trade Marks Act to falsely indicate that a trademark has been registered when it is not the case. There is no objection to using the words “Trade Mark” or the ™ symbol in connection with a trademark that is not registered. In addition, the © symbol may be used on your manuals, brochures, books, websites, etc to clearly indicate that copyright is being claimed in such works. The appropriate way to use the © symbol would be to indicate the date from which copyright is claimed along with the name of the owner. 

Trademarks are territorial and the rights are limited to the territory in which registration has been obtained. Thus, a registration in South Africa does not confer any rights on the trademark in export markets. As a result, rights in the mark must be protected in each country of interest or potential interest by the best means possible, that is, by registration. In some cases, however, regional filing systems apply. If you wish to file in Europe, or in the French-speaking and English-speaking countries in Africa, we could apply for the registration of your trademark through a centralized intellectual property registration office system, offered by each of these collective entities. By filing for the registration of your mark in this manner, you need only file one trademark application at the central office, which will afford you protection in a number of territories. 

For the French-speaking African countries, the African Intellectual Property Organization (OAPI) provides for the registration of a trademark in Benin, Burkina Faso, Cameroon, Central African Republic, Chad, Congo, Equatorial Guinea, Gabon, Guinea, Guinea-Bissau, Ivory Coast, Mali, Mauritania, Niger, Senegal, and Togo. The African Regional Industrial Property Organisation (ARIPO) covers English-speaking African countries and includes Botswana, Gambia, Ghana, Kenya, Lesotho, Liberia, Malawi, Mozambique, Namibia, Sierra Leone, Sudan, Swaziland, Tanzania, Uganda, Zambia, and Zimbabwe. National trademarks may be covered in each country. Please note that not all of these countries have amended their national legislation to recognize rights arising from an ARIPO registration. For more information on OAPI and ARIPO, please see our website.

Here is a brief explanation of the difference between company names, trading styles, and trademarks: A company name is a name under which a business operates and is registered on the Register of Companies and Close Corporations. On the other hand, a trademark is applied to the goods or in relation to the services of the proprietor of the trademark and is registered on the Register of Trademarks. Our costs for lodging the application for the reservation of a company name, preparing the necessary company documents (with a standard memorandum and articles of the association having a share capital of R1 000-00) and lodging these documents with the Registrar for registration, amounts to approximately R6 500- 00. Please note that this quote does not include our costs in the event that we have to make further representations to the Registrar should he disallow the name reservation application. 
1. What is a defensive company name?
In South Africa, it is not necessary to register a company in order to have a name added to the Companies Register. One can in fact register a defensive company name. The registration of defensive company names prevents others from incorporating a company or closing a corporation under a name that is confusingly similar. This can prevent confusion in the market place and it is, therefore, advisable to register a defensive company name as well as a trademark. In the event that you have registered a defensive company name containing your trademark, the Registrar of Companies will pick up the defensive company name registration at the time when any unauthorized person submits an application for the reservation of either a company or close corporation name containing your defensive company name. Such application for the reservation of the name will then be refused by the Registrar of Companies. 
2. What does the registration of a defensive company name entail? 
In order to secure registration of a defensive company name, we are required to satisfy the Registrar of Companies as to your direct and material interest in the name/s. This means that we have to prove a pecuniary or proprietary interest, which is important or significant, directly connected with the name, e.g. it is a trademark owned by the applicant. Generally, this requirement can be satisfied by furnishing the Registrar with specimen letterheads, business cards, catalogs, proof of registration of a trademark or trademark application, advertising material, and the like which clearly reflect the use of the particular name which protection is being sought. If you choose to proceed along this route, you would be required to submit an application for the reservation of the proposed defensive company name. The name reservation, if granted, is valid for a period of two months. Within the aforementioned period of two months, the application for the registration of the defensive company name is to be submitted to the Registrar. The application for registration must be made containing particulars of the name, as approved by the Registrar. 
Once the registration is secured it remains valid for a period of two years. The cost for attending to the defensive company name registration, including the reservation of the name amounts to approximately R1 950. Renewal of the registration may be secured at two-yearly intervals but at each stage of renewal, the Registrar may call for further evidence as to the continuing direct material interest in the name. The current charge for a renewal of a defensive registration amounts to approximately R1 300. 

Domain names are valuable corporate assets and identifiers. With the expansion of the internet and e-commerce, it is important for trademark owners to protect their trademarks on the internet by registering domain names. We are able to conduct a search to ascertain whether your relevant trademark/brand name can be. 
When registering a domain name on our clients' behalf, we can enter the required domain name onto our domain name servers. Once the domain name has been registered, our practice is to link all domain names that we register on our clients' behalf to an existing website of theirs. The domain name is then considered to be "used" for the purposes of registration. 

T10. What is the overlap between design registration and trademark law? 
Both our Trade Marks Act and Designs Act overlap with one another and there are numerous examples in which it may be possible for a product to be protected by way of both the Designs and Trade Marks Act. Examples would be the tread in a motor vehicle tire, the peculiar shape of a tennis racket, and distinctive shapes of furniture, to name but a few. There are however strict novelty requirements in the Designs Act and in some cases, it might be to your advantage to file for a trademark rather than a design.