The Basics of Brand Name TrademarkingNotably, businesses often underestimate the importance of a brand name trademarking in regards to protecting their business and general products. Additionally, many incorrectly believe the process of registering a trademark to be equally expensive and time-consuming. In general, Trademarks fall into one of two categories; trademarks or service marks. To enumerate, a Trademark is any word, name, symbol, or device, or any combination, used or intended to be used, in commerce to identify and distinguish the goods. Especially those of one manufacturer or seller from goods manufactured or sold by others, and to indicate the source of the goods. Whereas, a Service Mark is any word, name, symbol, device, or any combination, used, or intended to be used in commerce. In particular, to identify and distinguish the services of one provider from services provided by others, and to indicate the source of the services.
The Difference between a Brand Name & a Trade MarkDuring the Brand Name Trademarking process, brand names and trademarks are valuable assets to every business. Often a brand or trademark becomes synonymous with the product. Because of this, many companies want to protect their brands from others who may try to copy or misrepresent the name.
Important Company Naming Guidelines
TrademarkThe proposed company name cannot infringe on a registered trademark or an application for registration of a trademark.
PatronageThe point often overlooked, a company name cannot imply association or connection with or patronage of a national hero or any person held in high esteem or important personages who occupied or occupying important positions in Government. The proposed name cannot imply an association with Kenyan or Foreign Government.
ConstitutionAlso, the proposed company names cannot include words indicative of a separate type of business constitution or legal person or any connotation. For example, words like co-operative, serikali, trust, partnership, proprietor, society, HUF, firm, Inc., GmbH, SA, PTE, Sdn, AG cannot be a part of the company name.
Brand Names that include words like insurance, bank, stock exchange, venture capital, asset management, mutual fund or other financial activity may require approval from Regulatory Bodies.
Features of a Good Brand Name
The whole idea behind the registration of business names as trademarks is that they should help distinguish one business from any other. The more distinctive your name is, the easier it will be to register. However, a good Brand Name for Brand Name Trademarking should have the following characteristics: – It should;
- Be unique/distinctive (for instance: – Kodak, Mustang)
- Easy to pronounce, identified and memorized. (For instance: – jmexclusives)
- Give an idea of the product’s qualities and benefits (For instance: – Swift, Quickfix, Lifeguard).
- Easily convertible into foreign languages.
- Capable of legal protection and registration.
- Suggest product/service category (For instance Newsweek).
- Indicate concrete qualities (For instance Firebird).
- Not portray bad/wrong meanings in other categories.
General benefits of Brand Name Registration & Trademarking
Any company can try to prevent another business or individual from using its trademark. However, to prevent this ‘passing off’, you would need to prove that the trademark is yours, establish that you have built a reputation based on it, and show that your business has been harmed by the other party’s use of it. Not easy.
This is where registration comes in. When you formally register a trademark, you can easily take legal action against any business or person that uses it without your permission. And you can also show people that your trademark is registered – and deter them from abusing it – by adding the ® symbol. Formally registering this trademark allows a business to legally protect its trademark and its brand.[embedyt] https://www.youtube.com/watch?v=sSEB8V4m_1U[/embedyt]
The limits of registration
There are, as you might expect, some limits as to what business names can be registered as a trademark. A registered trademark obviously can’t use swear words or be offensive or pornographic. And it can’t be misleading. But perhaps less obviously, it can’t simply describe the product or service; and it can’t be common or non-distinctive in the relevant industry sector.
This means that a furniture company can’t register the name ‘Wooden’ as a trademark, and a drinks company can’t register the name ‘refreshing’.
As a matter of fact, protecting your brand and products is just as important as protecting any other business asset. Thereafter identifying a great business name, a business should consider registering its brand name as a trademark.
Applying to register your business name as a trademark is actually a fairly straightforward process especially in Kenya. However, when it comes to registering trademarks, it’s first to come, first served. So initially, you should run some quick online checks to make sure that an identical name – or a name that’s very similar – hasn’t already been registered by someone else.
Trademark Registration in Kenya
Important to realize, the Trade Mark Act (Cap 506) of Laws of Kenya regulates all Trademarks. The institution charged with the mandate to register trademarks is the Kenya Industrial Property Institute (hereinafter “KIPI”). However, before applying for the registration of a trademark, an applicant should conduct a search to find out whether the trademark is registrable or not. And also whether there exists in the records a trademark which could be confused with the intended trademark.
An application for search and preliminary advice by the registrar should be made by the prospecting proprietor or his agent on Form TM 27. Search is not mandatory but is advisable for the following two reasons;
- It will help one in determining whether the application has a chance for success.
- Determines whether it would be a waste of time and money to try and register it in its present form.
Requirements for registration of a Trademark in Kenya
- Name of a company, individual or firm, represented in a special or particular manner.
- The signature of the applicant for registration.
- An invented word or invented words.
- Any other distinctive mark.
Procedure for registration of a Trademark in Kenya
A search has to be conducted before applying for registration to find out if the Trademark can be registered or not. Registration will be refused if the mark/ sign resembles another registered Trademark. Though not mandatory it is important to conduct a search before proceeding with the registration process to avoid spending time and money on an application that will be refused. The relevant form is Form TM 27.
Application for registration of Trademark
After conducting your Preliminary search and are satisfied with the Marks registration, the next step is to make an application for your registration. This is done in the form of Form TM 2 and TM 32. For foreign companies to register their Trademarks in Kenya they have to appoint an agent in Kenya and as such, they will in addition to Form TM 2 and TM 32 require Form TM 1 for an appointment of the agent.
At this stage the Registrar examines your application to ensure the correct documents have been filed and also your mark does not resemble any registered Trademark. An examination report is then issued, the report will inform you whether your mark has been approved for registration or not. If it has been approved you will be required to pay the advertisement fee and registration fee.
If the Registrar approves the mark for registration he will instruct you to pay an advertisement fee. The mark will then be advertised in the Kenya Industrial Property Institute (KIPI) journal for 60 days to allow any person opposed to the registration of your mark to raise their objection. If no opposition is raised, it proceeds to registration. If a submitted opposition is raised, however, a notice of opposition in the form of Form TM 6 is filed and opposition proceedings begin.
This is the final stage in the registration process, if no opposition is raised upon advertisement, the application will be registered and the Registrar will issue a certificate of registration of Trademark.
Forms for Registration of a Trademark includes;
- TM 27 (not mandatory but advisable).
- The TM 2 Form – Application for registration of Trademark.
- A Form TM 32 – Application to enter or alter the address of service.
- Forms TM 1 – For foreign applicants (appointment of agents).
So go ahead and register that mark in Kenya that distinguishes your product, your services from your competitor’s. A good brand name can be an entity’s biggest asset. To start your registration process, please Click Here for more!
In conclusion, do you have that mark, that word, that sign or brand that you identify with? Well, until you register it, it is not yours and you have no exclusive claim to it. Well, as can be seen, a trademark is a mark or sign that distinguishes the goods of one entity from another.
On one hand, the Trademark may consist of one or more distinctive word, letter, numbers, drawings, pictures, signatures, colors or a combination of all these. On the other hand, a Service Mark is a sign which serves to distinguish services of one entity from another. It may consist of the same characteristics as those of a Trade Mark. Generally speaking, any individual, company, partnership or society can register a Trademark as long as they meet the necessary requirements.
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- Kipi – Trademark Registration Procedure.
- Invention – Trademark Basics.
- India Filings – Easily Register a Company.
- Novanym – Trademarking your business name – 11 key facts.
- Free search for international trademark availability: TM View
- World Intellectual Property Office: WIPO
- WIPO: Fee calculator
- Trademarkia: Registering a trademark
- Capita Registrars – Registration of Trademarks in Kenya.
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