What is a trade mark?

The nature of a trade mark

A trade mark, other than a certification or collective mark, is a mark used or proposed to be used by a person in relation to goods or services for the purpose of distinguishing the goods or services in relation to which the mark is used or proposed to be used from the same kind of goods or services connected in the course of trade with any other person.

“A mark” is defined broadly in the Act as any sign capable of being represented graphically, including a device, name, signature, word, letter, numeral, shape, configuration, pattern, ornamentation, colour or container for goods or any combination of the aforementioned.

“A device” is defined as any visual representation or illustration capable of being reproduced upon a surface, whether by printing, embossing or by any other means.

“Services” include the offering for sale or the sale of goods in the retail or wholesale trade.

Collective marks

A collective mark is a mark capable of distinguishing, in the course of trade, goods or services of persons who are members of any association from goods or services of persons who are not members thereof. Geographical names and other indications of geographical origin may be registered as collective trade marks.

Certification marks

A certification mark is a mark capable of distinguishing in the course of trade, goods or services certified by any person in respect of origin, material, mode of manufacture or performance, quality, accuracy or any other characteristic from goods which are not so certified. A certification mark may not be registered in the name of a person who carries on a trade in the goods or services for which protection is sought.

Goods and services

For the complete classification of goods and services, click here.

Trade Marks Act

The statute governing trade marks in the Republic of South Africa is the Trade Marks Act no. 194 of 1993 (“the Act”), which came into force on 1 May 1995. The Act was subsequently amended by the Intellectual Property Laws Amendment Act no. 38 of 1997.

For the full text of the latest version of the Act, click here.