Trade marks in South Africa are governed by the Trade Marks Act, No. 194 of 1993 and the common law (in cases of passing off). A trade mark is a mark used (or intended to be used) by a person to distinguish their goods or services from those of others in a similar trade.

A registered trade mark can last indefinitely, provided renewal fees are paid every 10 years. It’s important to note that trade marks are territorial, meaning they must be registered in each country where protection is needed.

What Makes a Trade Mark Eligible for Registration?

A trade mark can be registered if it is capable of distinguishing the goods or services of one trader from those of another. A mark can include:

• Words
• Letters or numerals
• Shapes, patterns, or configurations
• Colours
• Containers for goods
• Or any combination of the above.

A trade mark can be inherently distinctive (due to its unique nature), or it can become distinctive through use in the marketplace.

The Trade Mark Application Process

1. Trade Mark Availability Search (optional, 3 days): Our firm can conduct a search to determine if your mark is available for use and registration in South Africa.
2. Trade Mark Application (1 day): Once availability is confirmed, we prepare and file the application with the South African Trade Marks Office.
3. Official Examination (12 months): The Trade Marks Office examines your application to ensure it complies with the Trade Marks Act. If objections are raised, you will have the opportunity to address them. Once all objections are resolved, your application will be accepted.
4. Advertisement (3 months): After acceptance, the mark is advertised in the Government Gazette for a 3-month opposition period.
5. Registration (6 months after advertisement): If no oppositions are received (or if all objections are resolved), your mark will be officially registered as a trade mark.

Remedies for Trade Mark Infringement

If someone infringes your registered trade mark, you may be entitled to:

• An interdict (court order) to stop the infringer.
• The surrender of any infringing products.
• Damages or a reasonable royalty, depending on your choice.
• Recovery of legal costs.

How We Can Help

At Wolmarans and Susan Inc., we offer a comprehensive range of trade mark services, including:

• Filing of South African and international trade mark applications.
• Conducting availability and registrability searches.
• Providing legal opinions on trade mark infringement, validity, and enforceability.
• Enforcing our clients’ trade mark rights and defending against infringement claims.
• Auditing and managing trade mark portfolios.
• Assisting with the commercialization of trade marks.

Contact us today to secure and protect your trade marks both locally and internationally.