Brand it and bag it: spotting trade marks before they are taken

What is a trade mark?

A trade mark is a sign that distinguishes the goods or services of one business from those of others. Registering a trade mark with the UK Intellectual Property Office (UKIPO) provides exclusive rights to use that mark in relation to the registered goods and/or services.

Common types of trade marks

Most people think of trade marks as just logos or brand names, but they can take many forms. In the UK trade marks can be:

•          Words and names - e.g., Tesco, Barclays, ASOS

•          Logos and designs - graphical symbols like the Nike “swoosh”

•          Slogans - e.g., “Every little helps”

•          Letters and numbers - e.g., BBC, ITV

•          Colours - e.g., Louboutin Red, Cadbury Purple 

•          Shapes and packaging - e.g., the Coca-Cola bottle shape

•          Sounds - distinctive jingles or tones – e.g., MGM lion roar

Characteristics of a strong trade mark

When evaluating whether something could be a trade mark, consider the following:

1. Distinctiveness

The mark should clearly stand out - for example, "apple" for phones, or “eBay” for on-line marketplaces.

2. Descriptiveness

Avoid marks that simply describe your product or service, like “Crunchy Biscuits”. Descriptive terms generally do not qualify unless they have acquired distinctiveness over time. 

3. Generic terms 

Words or phrases that are widely used in your industry will not help customers distinguish your business from others. For example, calling a coffee shop “The Coffee Place” is unlikely to be remembered by consumers and is therefore unable to help the business grow. 

4. Existing Marks

Your mark must not conflict with existing marks in the same or related sector. Before registering, conducting a trade mark clearance search is essential.

How to assess your brand

To spot potential trade marks in your own business:

• Audit your branding - Look at names, slogans, logo, packaging, website layout.
• Ask “is this unique?” - Could this sign be seen as a badge of origin for your business?
• Think long-term - Is this element central to your brand identity?
• Think “are there existing marks?” - Contact us to conduct a trade mark clearance search and obtain guidance on how to proceed.

Final thoughts

Spotting what could be a trade mark is about understanding the value of your brand and how it functions in the market. In the UK, registering your trade marks can offer robust protection. The earlier you identify potential trade marks, the better prepared you will be to secure them and enforce your rights.

Protecting your mark today could mean avoiding costly disputes tomorrow.

If you have any further questions regarding how to spot/protect trade marks, we recommend that our advice is sought from a trade mark attorney as soon as possible.