1. What is a Trade Mark?
A Trade Mark is a mark which distinguishes the goods and services of one trader from another. A mark includes words, logos, pictures, names, letters, numbers or a combination of these.
A Trade Mark is used as a marketing tool to enable customers to choose a product or services in the market place.
2. What are the functions of trade marks?
Origin Function - A trade mark indicates the source of goods or services in the market place.
Choice Function - A trade mark facilitates consumers in making choices of goods or services.
Quality Function - Consumers have preference to choose a particular trade mark for its known quality.
Marketing Function - Trade marks act as an effective medium of advertising for producer in marketing their goods or services.
Economic Function - A trade mark which is well known with a quality or reputation may be licensed or assigned as an economic asset.
3. What is the law governing trade marks?
Trade Marks Act 1976
Trade Marks Regulations 1997
4. Why is trade mark registration important?
Exclusive Right - Registered trade mark owners are conferred exclusive right to use their marks in trade. They also have the right to take legal action for infringement under the Trade Marks Act 1976 against others who use their marks without consent. They can also lodge complaints to the Enforcement Division of Ministry of Domestic Trade and Consumer Affairs (MDTCA) for appropriate actions under the Trade Description Act 1972.
Registration Conclusive - Registration Certificate issued by the Registrar is conclusive evidence of trade mark ownership in the court of law. Furthermore the certificate is an important document of trade mark ownership in the course of trade or business.
5. Is trade mark registration compulsory?
Registration of trade mark is indeed important to obtain exclusive rights for purposes of exploitation and commencing infringement actions. However, registration is not compulsory.
6. What happens if the trade mark is not registered in an action for infringement?
The owner cannot commence any action under the provisions of the Trade Marks Act 1976. However, actions may be instituted under the common law principals whereby the trade mark owner has a duty to convince the court that the infringing act had mislead the public and the infringing goods or services may be mistaken as his goods or services. This action is very contentious and costly.
7. Who may file trade mark applications?
Any person who is the owner of trade mark using the trade mark or proposes to use the trade mark may apply for registration in Malaysia. The owner may be an individual, partnership, company or organization.
