The value of a company’s trademark should never be underestimated, with some of the most valuable trademarks in the world amounting to a significant percentage of the business’ overall value. The Google trademark, reportedly the world’s most valuable in a 2011 study by Brand Finance, was at that time worth an estimated US$ 44 billion, 27 percent of the total value of the business. Clearly this is an asset well worth investing in.
When it comes to your business, have you ever wondered whether the logos you have designed and crafted so painstakingly can be protected? Can the core asset that renders you immediately recognisable, separating you from your competition, be guarded from infringement? If so, you may find that learning more about trademarks is a valuable investment of your time.
Trademarks have always enjoyed significant protection, due to their value as the core of a company’s foundation. As much as possible, business owners will always attempt to protect and register their distinct trademark in order to make sure that it cannot be replicated in the market.
What is a Trademark?
The World Intellectual Property Organisation (WIPO) defines a trademark as ‘…a distinctive word or sign which identifies certain goods or services as being produced or provided by a specific person or enterprise’. It serves as an identification mark to distinguish the commercial enterprise from another operating in the same market, jurisdiction or even globally.
While the UAE is not a party to the Nice Agreement of 1957, which provides for trademark protection on a global scale, it does nevertheless adhere to the agreement’s aims and content. As such, it will recognize any and all of the following as trademarks:
In short, everything that can be used to distinguish one particular product from another can enjoy protection under the UAE’s Trademark Law, initially passed in 1992 and then amended in 2002. However, careful restrictions also apply regarding as to what cannot constitute a trademark, including:
Marks with no distinctive character (generic)
Marks breaching public morals
Public emblems, flags or logos of the state
Marks which have an international goodwill beyond boundaries (Coca Cola)
The name, title, picture or logo of a third party
Geographical names, which could cause confusion regarding the origin of the goods
Marks of a religious character
Registration of Trademarks
As per Article 6 of the Trademark Law, trademark owners can be:
National natural or juridical persons carrying out any commercial, industrial, handicraft or services activity;
Foreign natural or juridical persons carrying out any commercial, industrial, handicraft or services activity in the state OR in any country which treats the state according to the reciprocity principle;
Public juridical persons
In general, trademarks are registered under a company’s name when the company is established. However, current common practice means that company executives often file to register company trademarks under their own personal names, a step that is generally detrimental to the company as it restricts access to the trademark in question, as well as inhibiting the enforcement of trademark rights against competitors. Such a step can also result in financial losses, as registering the trademark under the executive’s name can deprive the company of a valuable asset.
It is not unusual to confuse trademarks with trade names, especially for those who are not legal specialists. However, the two are quite distinct. A trade name is the name under which a company conducts business, distinguishing the entity or its product in the eyes of its customers. A trademark is the official identifier of a company, and can be used to protect the brand name along with any associated symbols, logos or slogans.
Prior Use Doctrine
Prior users of an unregistered trademarks attempting to claim ownership will need to be aware and conduct proper checks when registering. The principle of “prior use” is not a clearly recognised principle under the UAE Law. Simply because you have used a trademark prior to another does not guarantee you protection.
The common practice is registering based on a “first-to-file’’ basis. If you have, however, registered a trademark and used this for an uninterrupted period of 5 years from the date of its registration, ownership cannot be disputed.
Once a trademark is registered, the owner receives exclusive rights to use the mark in connection with all goods/services it is registered for and if infringement is found they may act against the violator by initiating a civil or criminal legal proceeding or even both. For both types of legal actions, compensation can be claimed for all damages caused.
Administrative action can be initiated through market raids carried out by the DED inspectors. A file once opened is valid for 6 months only and action must be taken within that time.
Remedies possible under the route include
Confiscation of infringed goods when found
Destruction of counterfeit goods if and when discovered
Fines imposed against the infringers
Customs department includes forces which secure borders from incoming counterfeit goods and have been seen to be very effective and efficient in recent years.
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