Trade Marks Act 194 of 1993

It is important that when you consider the choice of a trade mark that you choose a mark that is not entirely descriptive of your goods or services as marks which are entirely descriptive are unregistrable as trade marks.

For example even though Apple and Mango are the names of common varieties of fruit and would not be registrable in respect of goods on class 31 (fresh fruit and vegetables) they are not descriptive of computers (Apple) or transportation services (Mango).

One is also able to register collective and certification trade marks in terms of the Trade Marks Act.

What is a collective or certification trade mark?

A collective trade mark is a mark filed by an association of persons and can be used in relation to goods or services used in trade by the association. A collective trade mark can be used for example to register a geographic name or indication which would otherwise be unregistrable in terms of the Trade Marks Act. Some uniquely South African examples of collective trademarks are the marks Method Cap Classique and Rooibos. Further African examples are the Saponé hat from Burkina Faso and the Poivre de Penja or Penja Pepper from Cameroon.

A certification trade mark certifies a trade mark belonging to a specific association as being of a certain value or characteristic and examples of that can be the wool mark or the Proudly South Africa trade mark.

A registered trade mark is renewable every ten years and gives you the ability to prevent others from using a similar or identical trade mark in respect of similar or identical services.

The only qualification to your right would be if there is a person who can claim and prove that they have used a mark anterior to the date that you have applied for the rights to that trade mark. Such person can assert so-called Common Law rights to that mark provided they can prove prior use.