INTRODUCTION
The media has recently had a share of national conversation concerning two companies that provide funeral services in Uganda, that is, the popular “A-Plus Funeral Services” and another entity known as “A-Class Funeral Services” that was seeking registration by the Registrar of Companies, Uganda Registration Services Bureau.
A-Plus Funeral Services sued the said A-Class to protect its trademark against infringement so that there is no confusion as far the two business names and services offered are concerned.
A business name and logo are key components for any entity to start business and thrive or even survive in any market place. This is the reason why business and startup founders spend countless time and frequently millions of shillings in coming up with the perfect business name and logo. The process makes a business name and logo an integral part to any business or start up and is the first thing a customer will notice before any transaction is concluded. These two marks build a company goodwill in the market place and represent the quality of their goods and services.
OVERVIEW
In this article I discuss the legal meaning of a trademark and the relevancy of trademarking your business name and logo in Uganda.
This article is intended to assist the general public, managers, directors, accountants and all individuals that manage businesses or individuals planning to startup companies/businesses to make perfect choices for their company names and logos and go ahead to register them as trademarks as early as possible.
TRADEMARK
A trademark is defined by Section 1 of the Trademarks Act, 2010 (hereinafter referred to as the “Act”) to mean, a sign or mark or combination of signs or marks capable of being represented graphically and capable of distinguishing goods or services of one undertaking from those of another undertaking.
According to Section 36 of the Act, trademark registration gives the exclusive right to the use of the trademark in relation to those goods to the exclusion of any other person.
REASONS TO TRADEMARK YOUR BUSINESS NAME AND LOGO
Trademarks give bullet proof protection to your businessA trademark by its nature gives the owner the exclusive right to prevent others from unfairly competing by using names, logos, phrases, symbols, or words that are similar to your business name or logo that may attract or confuse consumers
By registering your business name and logo with the Uganda Registration Services Bureau (URSB) Trademark Department, you can legally protect your brand, products and business expansion.
Whereas it is true that as soon as you start using a business name and logo, you are building a “common law” trademark protection, Section 34 of the Act limits legal action and protection for unregistered trademarks. Section 34 of the Act whose head note is, “No action for unregistered trademark” also provides thus:
“A person may not institute proceedings to prevent or to recover damages for unregistered trademark.”
Section 35 of the Act however allows action to be brought for passing off goods or services as the goods or services of another.
The only limitation with using passing off as a cause of action is that you have to prove existence of goodwill which may be hard for starts ups and small and medium sized businesses.
It is therefore paramount that in order to obtain full legal protection, you register your business name and logo as trademarks and acquire a trademark certificate which is conclusive evidence and gives your business full protection.
Trademarks create distinctiveness in your business
A trademark is the most important asset your business will ever own, so it is important to create a unique trademark that distinguishes your business from the other competitors and help your business stand out in a crowd.
This distinctiveness aspect of trademarks will help your business get a head of problems which may arise from time to time. Many small-scale businesses are usually unaware of potential problems until they receive a strong worded and stern letter from the big companies threatening legal action if they do not change their business name or logo.
A registered trademark will not only create a distinctive brand for your business but also protect your business from such scenarios that are bound to happen at any time.
Trademarks create immediate business value
Whereas the main purpose of a trademark is to protect your business’ brand identity in the market place, it also increases the value of your business.
This is because you are not simply growing your busines in quantity and size but also the value of that brand.
Consumers relate trademarks with every part of your business, and confusing it with another company or business can be fatal to your business.
If a startup or any other business plans to expand, sell, merge or raise funding, a registered trademark is a must.
Trademarks are a business opportunity
Most businesses and startups usually spend a lot of money in advertising, branding, and consultancy services in order to create business visibility and determine the appropriate services to render to the consumers.
However, if you registered your business name and logo as trademarks, you would create enormous opportunities for the business including but not limited to selling the trademark with conditions to third parties, licensing, using the trademark as security to obtain a business loan, enter into franchise agreements and license your trademark both in Uganda and any other country.
This will bring additional income to the business and depending on the terms of the franchise agreement or licensing agreement, there will be more visibility for your business hence guaranteed business growth.
Trademarks prevent the dilution of your business goodwill
Registering your business name and logo as trademarks is one of the necessary proactive measures for the business/brand owners willing to protect the power of attraction, image, business, services and prestige of their brand by strengthening their legal position.
Today, brands and goodwill are increasingly being recognized as independent assets of business. For instance, according to the Interbrand Report, today the Coca Cola’s brand is valued at 56.8 Billion U.S dollars which is ranked among the world’s most valuable brands.
CONCLUSION
By registering a trademark, the proprietor acquires an exclusive right in the mark as a special sign for the purpose of distinguishing goods or services. Consequently, the proprietor shall be entitled to prevent any third party not having your consent from using any sign identical or confusingly similar with the trademark in relation to your business, goods or services in the course of trade.
DISCLAIMER
This article provides general information only. It is not intended to provide advice concerning any specific set of facts, nor is it intended to be relied on as legal advice.
ABOUT THE AUTHOR;
The author is a commercial law practitioner with M/s Tibugwisa and Co. Advocates.
For comments and inquiries contact him at bright@tadvocates.com or +256775788115