A trade mark is defined as "any sign capable of being represented graphically and which is capable of distinguishing goods or services of one undertaking from those of other undertakings".  The following points are noteworthy.

The purpose of a trade mark is to connect the promotion to the supplier.

What makes for a good mark?  

Marks can be words, logos or any distinguishing mark that does not conflict with another party's trade mark.  They should be distinctive rather than descriptive and so made-up words are best.

What can be registered?

Under current trade mark legislation it is easier to obtain protection than before and a wider range of distinguishing features can be covered.  One can now register features such as smell, sounds, colours and forms of packaging provided that they can be represented graphically e.g. the smell of new mown grass (for tennis balls) the sound of a dog barking (for a brand of paint that has used the image of a barking dog in its adverts for many years).  In addition to words, slogans can be registered e.g. “let your fingers do the walking.”

EU Developments

A European Community Trade Mark is also now in existence.  A single application to the Office for Harmonisation of the Internal Market (OHIM) in Spain can result in a trade mark in force in all EU countries.

Passing Off

In common law countries, such as Ireland, one acquires a certain degree of protection by using a particular trade mark even if one has not registered it.  If a competitor starts to use a similar mark which might deceive customers, one can sue them for “passing off” of goods or services. Trade mark registration gives stronger protection of course and is essential in some countries.

What is Know-how?

Know-how is secret or proprietary information (often related to production methods or techniques) and is not registered.  Its protection is provided by the fact that it is kept secret.  Transfer of know-how from one organisation to another is done by secrecy or confidentiality agreements.  These require the receiving party to treat the information with the same care as if it had devised it itself.  Know-how can include any information on manufacturing or marketing products and services and is often the most important form of Intellectual Property in technology transfer even though it seldom appears in public.  Five to seven years would usually be the maximum term for a know-how licence as know-how tends to enter the public domain eventually.

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