A trade mark is any sign that can distinguish the goods and services of one trader from those of another. A sign includes, for example, words, logos, pictures or a combination of these.

There are many well known trademarks that are instantly recognisable all over the world. For example, Coca Cola, Nike, Levi Strauss jeans, McDonald’s, Rolex, Chanel, Heineken and Pizza Hut all combine words and symbols which are unique and easily identifiable. But any trademark can be created and registered so as to prevent it from being used by anyone but its owner.

In recent years there have been many interesting court cases involving alleged trademark infringement. Hasbro Toys for many years manufactured a doll’s house called “Candy Land”. When a pornographic website called “candyland.com” was launched, it was successfully sued for trademark infringement by Hasbro Toys. In another case Harvard University sued a website called “notHarvard.com” over the use of its name. Microsoft also faced and staved off a threat from a website called “Microsf.com”.

In order to win a trademark infringement case, it must be shown that the two trademarks are so similar that consumers will most likely be confused between them. When a trademark has been established, the owner has the right to enjoy the business goodwill that it generates, and to use it free from interference from others. However, competitors may try to use the goodwill of the established trademark, by using a name or symbol that is very similar. If buyers become so confused that they can easily make a mistake between the two trademarks, there has been a trademark infringement.

In order to be registered in Anguilla, your trademark must be distinctive for the goods or services for which you are applying to register it, and not deceptive, or contrary to law or morality. It cannot be similar or identical to any earlier marks for the same or similar goods or services. Registration will be refused if the trademark is likely to confuse the public or trade circles.

When a trademark is presented for registration the application must be advertised in the Official Gazette. This gives the opportunity for anyone who objects to the trademark to lodge a notice of opposition with the Registrar of Trademarks. If the dispute cannot be settled by the Registrar, the aggrieved party has the right to file an action with the court.

Trademarks registrations last for ten years and can be re-registered every ten years. If a trademark ceases to be used by its owner for at least three years, it can be removed from the register.

Alex Richardson is Managing Partner of the law firm Alex Richardson & Associates, P O Box 371, The Babrow Building, The Valley, Anguilla, Tel: 264 498 4224, Fax: 264 498 4220, email: arichardson@anguillanet.com. He is also Managing Director of Paragon Corporate Services Ltd.

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