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What is a trade mark?

What is a trade mark?

What is a trade mark?

Tuesday 11 February, 2020

Do you know the difference between this symbol ® and this symbol ™? The ® indicates a registered trade mark, which means that the holder of the trade mark has the exclusive right to use that trade mark in relation to nominated categories of goods and/or services in New Zealand.  The ™ indicates an unregistered trade mark, which only has limited legal protection in New Zealand. Registered trade marks are more valuable because they are easier to protect and more effective in stopping others from using your trade marks. Intellectual property, such as trade marks, can be a business’s most valuable assets, provided that it is correctly identified and protected.

Most people are aware that trade marks can be a brand name or a logo or a slogan, but trade mark is an extremely flexible term. Fundamentally, a trade mark indicates that there is a connection between the trade mark owner and certain goods or services. Nearly anything can be a trade mark, including smells, colours, shapes, sounds, or any combination of them. Here are some examples of trade marks that aren’t limited to words or pictures:

  • Most New Zealanders will instantly recognise Cadbury’s distinctive shade of trade marked purple but might not know that Mattel has trade marked ‘Barbie pink’ for use in more than 100 categories of products, from bubble bath to cereal or that Tiffany & Co has trade marked its distinctive shade of blue.
  • Nearly everyone who has ever watched a movie will have heard the roar of the MGM lion, but might not realise that sound is a trade mark. Sounds can be complicated though: ‘artificial arrangements’ such as chimes or jingles can be trade marked, but in 2000, Harley Davidson withdrew its application to trade mark the engine sound its motorbikes make after 6 years of legal proceedings.
  • Smells can also be difficult to trade mark. You can’t trade mark a scent if it’s a ‘functional’ part of the product, such as the smell of a perfume or a deodorant; instead you have to apply for a patent for the creation of the scent. There are very few registered scent trade marks, however one that New Zealanders might be familiar with is the smell of Play-Doh.

If you have a trade mark that you are using, or want to use, in your business, you need to register it as soon as possible. Registering is the best way to protect your business, brand, and reputation and to maximise the value of your intellectual property.


If you need help with IP issues, contact Shelley Slade-Gully, our Legal 500-recommended IP expert.

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