Trademark Act defines a trademark in Section 2 of the Act as, “A mark used or proposed to be used in relation to goods or services for the purpose of distinguishing the goods or services from the same goods or services of another trader”. It is clear from the definition that the sole aim of the legislature is to allow for people or businesses to have a distinguishing feature of their goods or services, to that of another trader so as to have that particular good or service identifiable by consumers.

In Canon Kabushiki Kaisha v Metro-Goldwyn-Meyer Inc [1999] RPC 117N (ECJ), the court held, “that the function of a trademark is to guarantee the identity of the origin of the marked product to the consumer or end user by enabling him, without any possibility of confusion, to distinguish the product or service from others which have another origin”

It can be said that a Trademark serves four (4) of the following essential features:
– Distinguishing
– Origin
– Guarantee
– Advertising

It should be noted that Trademarks are territorial, meaning that they only give rights in a country that which the trademark is registered. What this means is that a company, duly incorporated and have their trademark registered within the boarders of the Republic of South Africa, will only have the right to that trademark, only within the territory of South Africa, and should they want to acquire the trademark rights in another country, they will have to register in that particular country.

Section 9 and 10 of the Trademark Act sets out the criteria which trademarks have to meet in order to qualify for registration. Section 9 provides that a trademark should be distinctive (whether inherently or through use), while section 10 on the other hand places prohibitions on the registrability of trademarks by imposing that they should not be descriptive or subsequently prohibit the use of other traders, by virtue of that trademark registration.

Successful registration of trademarks is thus, an integral part of intellectual property law in South Africa, by providing traders with a legal and viable mechanism to protect their brand and places a differentiation between themselves and other traders in the market. By navigating the registration procedure, knowing enforcement tools and being aware against infringement, traders may take advantage of their trademarks to ensure their place in the competitive commercial landscape of South Africa. At Xuba and Associates we have the legal expertise to assist in these matters to help protect your brand.