Many small business owners only think about trademarks when it is too late – when someone else is using their company or product name. Luckily entrepreneur and founder of Eastern Cape-based clothing brand Dead Reckoning Jono Bruton realised the value of keeping his trademark safe from harm from the start…
Having a strong appetite for doing things the right way, we’d applied to the Trademarks Office of South Africa to register a few of our brand’s slogans, designs and logos. It cost money, but it was money well spent when we came across an international clothing brand with over 1000 stores around the globe mimicking one of our designs. I feared the worst. How could a start-up brand like Dead Reckoning fight this giant?
After confronting the offending global giant about their infringement of our registered trademark slogan ‘Salty Sea Dog’ I was pleasantly surprised to find that after presenting my official trademark documents to their headquarters in Australia, they immediately requested all stock of the particular item to be removed from all of their stores in South Africa within two days.
Don’t shrug off the importance of protecting the brand you are building. If we had not protected our brand’s uniqueness, Dead Reckoning could well have been destroyed by cheap low quality counterfeits, or by the big players with way more weight than us.
I’ve learnt some valuable lessons in protecting your brand through trade marking along my entrepreneurial journey:
Do you know the difference between ™ and ®? The difference between the two is somewhat similar to a copyright or a patent. Once a piece of art is painted or a written work is printed, for instance, it automatically receives copyright protection. In this same way, any new product with a distinctive and unique name can be considered to be trademarked, in the ™ sense at least. A company can put out a new line of boardshorts called ‘The Merv’ for example, complete with a hand drawn graphic of a sailor smoking a pipe. The graphic and the name ‘The Merv’ would be considered a trademark, and the company could put the ™ designation on it immediately.
The problem with not registering a trademark, lies in the competitive nature of business. Another company could also produce boardshorts called ‘The Merv’ or even ‘The Verv’ and use a very similar graphic of a sailor smoking a pipe. While the first company may have some proof that their product was marketed first, they may not be able to prove infringement since they did not register the trademark with Companies and Intellectual Property Commission (CIPC) first.
A registered trademark, on the other hand, would provide the original boardshort company with much more legal protection. Once the trademark is fully processed by the CIPC or foreign trademark offices, it can display the ®. The second company would have been able to research the CIPC archives to determine if their own suggested trademark was legally available. Since ‘The Merv’ with the distinctive graphic would have appeared as registered, the second boardshort company would be compelled to select another name and design.
A trademark designated ™ is a notice to others that the product’s name and design is the exclusive property of the company, but a registered trademark ® provides notice that it has indeed been registered. Only a legally registered one can be represented by the ® symbol, and even then it must be renewed after a number of years to continue enjoying legal protection.