What can and cannot be included in your trademark

A trade mark is in the majority of cases, in the form of one of three types. A trade mark can be a symbol or logo containing just pictures, the mark can be solely word based or it can be a combination of both pictures and words.

What cannot be included in a trade mark under section 4? 

A trade mark is in the majority of cases, in the form of one of three types. A trade mark can be a symbol or logo containing just pictures, the mark can be solely word based or it can be a combination of both pictures and words.

However, there is not a free reign over what can be included. Under the Trade Mark Act 1994, section 4 outlines a number of signs that cannot be registered and will be refused under the absolute grounds for refusal.

The main theme in relation to the excluded emblems is in relation to the Crown and the Royal Family. The act specifically mentions the exclusion of the use of the Royal Arms and the Royal Crown but also excludes the use of any representation in relation to the Royal family which can catch marks that are indirectly linked and which may have originally thought to have not be a problem.

There is an exception to this rule, however, where permission to use the mark has to be granted by or on behalf of Her Majesty or other members of the Royal family. This is how companies such as Royal Mail can include the Royal Crest and the word ‘royal’ in their name.

In the section of the Act, flags are also considered. It is clear from the wording of the statute that any use of national flag in a misleading or offensive way is completely prohibited. The flags specifically mentioned in the act include the national flag of the UK – the Union Jack, and the flag of England, Wales, Scotland, Northern Ireland or the Isle of Man. In addition, it is clear that any use of the flags would not be distinctive and would fail to satisfy other requirements of registration. 

Therefore, if you are hoping to register a mark in relation to any of the above mentioned, think again. If you are unsure if your proposed mark would be caught or if you want to make amendments to raise your level of success, get in contact with trademarkroom.

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