In accordance with Section 3 of the Trade Marks Act 1976 of Malaysia, a valid trade mark is defined to include a device, brand, heading, label, ticket, name, signature, word, letter, numeral or any combination thereof. Section 1 of the United Kingdom Trade Marks Act 1994 provides a clearer definition of what a trade mark is where it stated that a trade mark means “any sign” capable of being represented graphically which is capable of distinguishing goods or services of one undertaking from those of other undertakings.” A trade mark may, in particular, consist of words (including personal names), designs, letters, numerals or the shape of goods or their packaging.

Without the above knowledge the general public would normally go around and create what they thought to be their “trade mark” as soon as it first comes into their mind without having to consider whether that particular name or brand name fulfilled the description mentioned above. Don’t get me wrong, whatever comes into one mind do become their own personal “trade mark” as it is defined by law to include “any sign”. However, that simply fulfilled the first limb of the entire what I call a “trade mark creating process”. Whether or not it can becomes a registerable trade mark would fall in to the second limb of the “process” namely whether it is “capable of distinguishing goods or services of one undertaking from those of other undertakings”. Meaning, is the so call “trade mark” owned by another? Would it contravene with the laws? And numerous other surrounding factors which would need to be considered in order to turn the “first thing comes into mind” into a legally enforceable trade mark.

At this point, some would raise concern regarding their created names being unable to fulfill the second limb of the process but would not want to forgo such a name due to the history of the name in the industry. Have no fear, the law further permits names or signs of the above characteristic to be legally registered under one condition. The names or signs would have to be “proved by evidence to be distinctive through usage”. Meaning, the one who claimed that their names or signs have been in the industry for a substantial amount of time would need to prove to the local Registry that they have expended substantial effort to protect and promote their names or signs in the industry and is more than capable to distinguish its origin from other similar undertaking.

Therefore, to those who are interested in starting their own brand, a professional trade mark search is highly recommended. Almost every single legal firms and private IP firms do possess the skill to help those who are in need of professional advice in terms of the availability of their brand names and signs.  Bearing in mind that trade mark is strictly on a first come first serve basis.

SO GET YOURSELF A TRADE MARK SEARCH TO AVOID FUTURE REGRETS!

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