Benefits of registering your trade name as a trade mark
- no need to establish a reputation in infringement proceedings
Unregistered trade marks that have been used extensively and for a substantial period of time will acquire some protection in terms of the common law. This also applies to company names. The goodwill in an unregistered mark or name is protected against unlawful competition and passing off.
In order for Company A to successfully rely on passing off it must prove that its name or mark has acquired a reputation and is associated by the public with the services it offers. In addition it must show that the use by Company B of a name or mark that is the same or similar to its name or mark is likely to cause confusion. It must show that the public will assume that the companies are associated with each other in some way.
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Hey, that's my trade mark!
The Companies Act makes provision for trade mark owners to object to the registration of a company in circumstances where the company name contains or consists of matter which infringes a trade mark or falsely implies that it is part of or associated with another person or entity.
In a recent decision the Companies Tribunal ordered Kulula Cash Loans (Pty) Ltd to change its name to one that did not include the registered trade mark KULULA.
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