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How to brand a trade mark using the ® and ™ symbols and the importance of © notices on social media and websites

Article by Alicia Castleman (Partner) and Zamokuhle Sokhela (Associate) Adams & Adams

Although not legally required, it is advisable that brand owners use the ® and/or ™ symbols in conjunction with their trade marks. By doing this, the brand owner makes the public, including competitors, aware of its exclusive rights in respect of a particular trade mark.

The ® symbol is used to indicate that a trade mark is registered. It is, however, to be noted that in South Africa it is an offence to use the ® symbol in respect of a trade mark which has not become registered. The punishment for this offence is a fine or imprisonment of a period not exceeding twelve months. In the circumstances, a brand owner can only use the ® symbol in respect of a registered trade mark.

The ™ symbol is also used to show exclusive rights in respect of a trade mark, but unlike the ® symbol, the ™ symbol may be used in respect of a registered or unregistered trade mark. The ™ symbol is generally used by a brand owner who has filed a trade mark application that has not yet proceeded to registration or, if an application has not yet been made to register a trade mark, to indicate to the public that the name, trade mark, logo, slogan etc. is being used as a trade mark.

The effect of using the ® or ™ symbols is not only to show that exclusive rights are being claimed in the name, trade mark, slogan etc. but also to deter third parties from infringing a brand owners’ trade mark.

Another symbol that can be used to refer to intellectual property is the © symbol. Owners of work in which copyright subsists can use the © with copyright notices and can list the symbol in front of the name of the organisation or person, followed by the year in which the copyright came into existence. Like the trade mark symbols, use of the copyright symbol is also not a legal requirement. However, the effect of the use of the © symbol is not only to inform members of the public of the copyright in the work, or to prove the date on which the copyright came into existence, but it will also serve to deter against possible acts of copyright infringement by third parties.

Developments in the social media sphere are taking place at a rapid pace and it is advisable for brand / copyright owners to create corresponding profiles for their brands / copyright on these social networking platforms. The social networking platforms available can also be used to educate the public of a brand or copyright owners’ rights in the copyright or brand by using the © , ® and/or ™ symbols in relation to the copyright / brands on these platforms.

It is also to be noted that if, for example, a brand owner does not create a profile for its brand on social networking platforms there is a risk that third parties could take it upon themselves to create misleading or even disparaging profiles for the brand. In such circumstances, the brand owner will have to take legal action in order to stop such unauthorised use of the brand. The best possible manner in which to stop such unauthorised use would be to rely on a corresponding trade mark registration which once again shows the importance of registering brand names as trade marks, as well as the importance of educating the public of the brand owners’ rights in a particular brand.

In order to avoid the scenario mentioned above, brand owners should consider conducting frequent searches on social media platforms to detect possible acts of infringement of their trade marks by third parties.

It goes without saying that trade mark protection is a regular proactive exercise that goes far beyond filing a trade mark application. Since business owners do not always have the time to be proactive in this regard expert intellectual property attorneys, like Adams & Adams, could be appointed to assist and to take the necessary proactive steps.

Adams & Adams is a proud Partner of the National Small Business Chamber (NSBC).

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