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Questions & Answers

Posted by Ryan Mulligan on 2014-04-21 10:04:33
Title: How important is it to trademark the name and logo of your business and should that be done before y...
Category: Marketing

How important is it to trademark the name and logo of your business and should that be done before you start discussing and displaying your brand to people? Also, can you trademark images such as four leaf clovers etc?

Answer:

Ronan Levy
2014-04-24 14:54:51

Ryan - the importance of trademarking will depend on who you seek advice from. Most IP lawyers will tell you it’s extremely important; I’m a bit more cynical as to the value. The reason for that is subject to a much longer conversation but it’s not relevant for responding to your query. 

Unlike patents (which you really need to file before publicly disclosing any information) you earn unregistered trademark rights in a brand as soon as you start using it in a commercial context. Unregistered (or common law) trademark rights are much more limited than registered trademark rights (you can typically tell the difference when used as unregistered marks usually have a “TM” beside them, whereas registered trademarks will have an “R" enclosed in a circle) and will only give you the rights to stop people from using your unregistered mark in the geographic region in which your mark has achieved “distinctiveness”. (Registered trademarks give you protection across Canada, even if your mark is not distinctive in a particular geographic territory.) 

In other words, as soon as you start using a mark, you get some protection in it. So don’t worry about disclosing it before filing the trademark application. Not to mention, trademarks aren’t worth the paper they are written on if they don’t mean anything to people, and they don’t mean anything to people until you have brand goodwill and association, which you don’t get until you start using it. 

As for whether you can register a four leaf clover trademark, the answer is “YESBUT”. YES, in theory, you can register a four leaf clover as a trademark. BUT, ultimately, it will depend on what “wares or services” you propose to use it association with and whether there are others using a similar mark for similar services. Generally, you won’t be able register a trademark if there is any chance that your mark will create confusion in the public’s mind as to the origins of your products (as opposed to someone else’s). So if someone else is using a four leaf clover in their mark for services similar to yours, you won’t be able to register a four leaf clover as your trademark. 

I suppose there is a lot to digest in this post so feel free to email me if you have any questions: ronan [at] mayfairseven.com.

Ronan Levy, Founder Mayfair Seven Legal Concierge Services