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HOW TO COME UP WITH A GOOD TRADE MARK?


What do Malaysians call diapers, instant noodles, toothpastes, chocolate drinks & headache ointments? Answer: Pampers, Maggi Mee, Colgate, Milo & Minyak Cap Kapak! The fact that Malaysians refer to the brand name (trade mark) when naming a product, is indeed a good thing. This is because the trade mark (brand name) is stuck into their minds and when an act of purchase is being carried out, they would straight away go get that brand and wala……there you go. Sales up. However, there is also a downfall to this. Knowledge in trade mark is indeed an important matter. Here are some clarities for you…….


(a) Types of trade marks


Question: Wouldn’t you want your brand to be in their minds too??? So how do we come up with a good trade mark? What types of marks are better – words or logo? Are these the only types of mark? How about holograms – are they trade marks? Can smells be a trade mark? Are trade marks and trade names the same?


Answer: Of course you do. Knowledge in what a trade mark is will lead you to create a good trade mark. There are many types of trade marks. Yes, words, logo, holograms, smells, sounds are all trade marks. However, not all types of those trade marks are protected in Malaysia. Trade marks and trade names are not the same and many are confused as to what these two phrases mean.

(b) When to choose a trade mark?


Question: Once you know what a good trade mark is, the next question that arises is when do you create your trade mark? Is it during the running of the business or is it after you have set up your business/company or is it prior to venturing into business?


Answer: Always have your trade mark in mind prior to venturing into business.


(c) Who owns the trade mark?


Question: When creating the trade mark for your products or services, who does it for you? Is it you or your employee or do you get a designer to create a trade mark for you? To whom does a trade mark belong to? If your trade mark becomes famous one day and it was created by your employee or a designer, can they later claim ownership of that trade mark?

Answer: If the trade mark is created by you and you are the sole proprietor of your business, then the trade mark belongs to you. If you are an employee of a company who created the trade mark or a designer commissioned to create the trade mark, the trade mark belongs to the organization i.e. the trade mark belongs to the company.


(d) How do you prevent others from using your trade mark?


Question: What happens when your trade mark is used by others without your permission? Can others use your trade mark by comparing it with their same product which is cheaper, say, in an advertisement or pamphlets? Is there anything you can do to stop this? Such act of comparison will surely ruin your sale of product as people tend to buy cheaper products with same functions unless you have a very good trade mark associated with your product, where people will not be bothered by such advertisement or pamphlets.


Answer: Competitors love to use your good trade marks on their advertisement or pamphlets, to show that their product is cheaper than your product. However, there are rules that do not allow this kind of act. Your competitor cannot use your trade mark to show that his product is better than yours.


(e) How can you safeguard your interest in your trade mark?


Question: What is the letter “R” in a circle appearing at the top of a trade mark? How about the letters “TM” also in a circle placed at the similar spot? Are they the same? What are the benefits of placing such letters? Is it mandatory to use these letters? Since such letters seem to attach some kind glam to a trade mark, can anyone use them on their trade mark? Is there a law governing such use?


Answer: The letter “R” appearing in a circle at the top of a trade mark means that the trade mark is a registered trade mark. The letters “TM” appearing in a circle at the top of a trade mark simply means that the word or logo is a trade mark and that trade mark belongs to someone. In order to use the “R”, you must have obtained registration of your trade mark. Using this “R” without having obtained a registered trade mark is an offence. Anyone can use the “TM” circle near their trade mark. It is not necessary that the trade mark must be registered. Registration of trade mark is always better. Using an “R” appearing in a circle at the top of your registered trade mark is indeed a glam!


(f) How do you register your trade mark?


Question: Is it mandatory to register a trade mark? Why must I register my trade mark? Isn’t it sufficient that I have registered by business with SSM? Isn’t it expensive to register a trade mark?


Answer: It is NOT mandatory to register your trade mark. However, registering your trade mark is a security step which you would have taken to prevent any misuse of your trade mark years down the road. When a trade mark is new, it may not have any value. However, in time, the trade mark = goodwill = asset. Registration of a trade mark will be a valuable asset as time passes by. Showing proof that your trade mark has been registered years ago will be your ammunition in such a case of misuse. Registering your trade mark is with MyIPO and it is NOT the same with getting your business name registered with SSM. They are 2 different matters. Although it is not mandatory to register your trade mark, it is worth it as the fee is minimal as all you need to do is just go to MyIPO, fill up the forms and submit them. As for foreigners, you have to appoint an agent to do this registration for you BUT for Malaysians, you can do it yourself.……….just go toy MyIPO and DIY… Malaysia boleh!!!


Contact: If you are interested to know more about trade marks, come attend our Trainings on Intellectual Property. WA us at 019-7372671 or drop us an email at amachafilles@gmail.com should you wish to know about our Training sessions.

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