FAQs - Trade marks

If you are manufacturing goods or offering a service, it helps you to have a trade mark. When people see or hear about a trade mark, they remember the goods or services associated with it. Your trade mark distinguishes you from other people in the same line of work, and gives you an identity in the market place. Goods are things that can be manufactured, such as a radio, clothing, medicine, cosmetics, jewelry and cars, goods can also be perishables, such as plants, meat, milk, fruits, and vegetables. A service is work done by a person or a group of people for other people. Some examples are a restaurant, a construction company and a food delivery service.

Yes, there are ordinary, collective and certification trade marks. Also non-traditional trade marks such as sound marks.           

A group of traders may register a so-called collective trade mark for use by its members only. The purpose of such a trade mark is to show that a member of the association provides the goods or services associated with that specific association/organisation. The collective mark may often be used together with the individual company's trade mark. When a collective trade mark has been registered, the owner may allow use of the mark by any person who complies with the regulations relating to its registration. Geographical names or other indications of geographical origin may be registered as collective trade marks e.g. Stellenbosch Farmers Winery.

A certification mark exists to indicate that a product is of a certain quality or has certain characteristics rather than to distinguish it from the products of other traders e.g. the cotton mark, the wool mark, the leather mark.            

If you have become associated with a particular identity through trade, you have what is known as common law trade mark rights. To protect this trade mark, you can sue the infringer for passing off. Passing off is when the infringer has led the public to believe that his goods/services are the same as or associated with the goods/services of the trade mark owner.

Yes, you can, but you must make sure that your trade marks do not infringe somebody else's rights. Remember that your registration is valid only on the territory of South Africa. You are strongly advised to use an attorney to conduct a trade mark search for you in the country you are exporting to, or depending on the circumstances, apply for a trade mark registration in that country.

A search has to be conducted to make sure there is no similar or identical trade mark on the register preventing the registration of your trade mark. Click here for more information on special searches.

If you conduct a search yourself at our office, it can be done in a few minutes. If you require a special search to be conducted, the office will provide a report within 15 working days after receipt of the request for the special search.

Create a brand name, slogan or logo (device) for your goods or services. Try to create something distinctive that people will remember. Do not simply describe your goods or services, since this will not serve to distinguish your business from other businesses with the same goods and services

No. The Act defines what can be regarded as a trade mark and more specifically exactly what constitutes a trade mark. Click here for more information on what is a trade mark

It does not. If you want to apply for overseas protection you must approach a trade mark attorney in the relevant country to register the trade mark for you.

This is not necessary but you may find it useful to seek the assistance of a trade mark attorney if your trade mark is refused or if there are any objections. If you do not reside in South Africa you will need to make use of lawyers to lodge the application for you

An admission is normally required where a word that is required for use in the trade by other traders has been miss-spelt in a trade mark, eg “xpert” as opposed to “expert”. The applicant will be required to admit that he does not obtain any exclusive rights in the word “expert”. A disclaimer is required when a word that is required for normal use in the trade by other traders form part of a trade mark application, e.g. the word “perfume” in the class for perfumes. The applicant will be required to disclaim exclusive rights in the word “perfume”.

The best course of action is to obtain written consent from the registered owner by contacting him/her directly.

The application fee for a trade mark is R590.00 for one class of goods or services. For each additional class it is R590.00. This amount will not be refunded if the application is refused

A trade mark should be renewed every 10 years

A trade mark is renewable every 10 years. This office will notify the proprietors six months before renewal is due. However it is also the responsibility of the trade mark holder to ensure that he tends to the renewal in the proper time frame as the office cannot be held responsible when a trade mark holder fails to apply for renal timeously.

Yes it can. If your registered trade mark has not been used in South Africa for a continuous period of five years, another person may apply to have it removed from the Register.

It is always advisable that the trade mark be searched before the application is made. This can be done by requesting a special search on payment of a fee of R190.00 payable. However a special search report ONLY indicates if there are prior conflicting marks on the register – it does not indicate whether a mark will be found to be registrable or not during the period of examination. This cannot be advised beforehand – only once the application is examined will an official action be sent to the applicant.

The Trade Marks Department is not responsible for policing and/or enforcing an individual's trade mark rights. You should approach your trade mark attorney for help

Yes. You may allow others to use your trade mark on some of the goods or services for which it is registered on such terms and conditions as you deem appropriate. A fee is payable. Click here to view more information on registered users.

Yes you can. A trade mark is property just as any other and can be sold or given away. The Registrar must be informed of the change of ownership and the conditions of the change of ownership. The new owner must be noted in the Register for which a fee is payable. Click here to view more information on assignments.

A trade mark must be registered for goods or services falling in a particular class in accordance with the prescribed classification, e.g. class 25 for clothing, footwear and headgear, class 5 for pharmaceuticals and class 42 for the Internet services. The classification is an international one used in all countries and can be found on the website of the World Intellectual Property Organisation at www.wipo.int.

Yes, provided there is no similar or identical registered trade mark on the register

A trade mark cannot be filed in all 45 classes just to keep out competitors. But if you intend the mark in all 45 classes, you can apply for registration in all the classes

You will need to ask advice hereon from your lawyer as it will depend whether their right to use the company name is stronger than your right to use the trade mark. It is advisable to do the trade mark and company or close corporation searches simultaneously.

This office does not, but you can contact your Internet service provider.

The best course of action is to approach the executor of the estate and discuss the matter with him/her.

A trade mark is property that can be sold by the liquidator.

Anybody who sees a trade mark advertised in the Patent Journal and believes that he/she may have objections may oppose its registration within three months of it being advertised, by making written representations to the Registrar. The same applies if you wish to object to the registration of someone else's trade mark. If your trade mark is opposed it is advisable to seek professional assistance from a lawyer. Click here to view more information on oppositions.

Yes it can be used, but the owner cannot obtain sole rights to the common part of it , e.g. .co.za.

SEDA, a division of the dti may be able to assist you herewith. Their details can be obtained from www.thedti.gov.za.

Yes you can, provided it falls within the definition and requirements of a trade mark.

It is either a physical or a postal address, where you would like to receive your correspondence in respect of the trade mark application. It must be an address in the Republic of South Africa.

You can fax application forms and communicate to this office electronically provided that the original is received within 5 working days of the receipt of the faxed copy.

This office does not provide barcodes. Contact Barcode Systems at 011 444 3344. They will be able to assist you.

Please contact the Technology Promotions of the Department of Trade and Industry hereon.

Such emblems fall under the protection of the Merchandise Marks Act, Act 17 of 1941. The following are regarded as state emblems: the seal and coat of arms of the Republic, national monuments, the representations of the present and all former State Presidents of the Republic. Use can be made of these state emblems only with the permission of the Minister of Trade and Industry, together with the consent of the owner of the state emblem and that of the National Monuments Council. In as far as the use of the flag is concerned, use may not be made of it in a trade mark. In addition, use can be made of the national flag only with the permission of the Minister of Trade and Industry.

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