Roxanne Miller, Legal Writer

When your business is just starting out and is easily recognisable to your limited customer base it would be difficult for another trader to pretend that his goods or services are yours.

Your customers know you, your place of business, your delivery men.

But when your business expands and you are soliciting customers nationally or even globally, others may want to profit from the goodwill and reputation that you have built in your product.

The easiest way to do this is to use your logo or name or a confusingly similar name or logo. This is where registration of your mark becomes essential.

Registration will not prevent interlopers but it will make taking action against them easier and cheaper. For instance, to protect an unregistered trademark you have to prove - as obvious as it sounds - that the mark is yours, secondly that you have built up substantial reputation in the mark and that your business has been harmed by the alleged infringer. On the other hand, registration grants the proprietor monopoly rights over the mark from the filing date of the application.

The registered owner can take action against anyone who uses a mark that is the same or similar on similar goods or services.

There is no need toprove ownership or widespread goodwill in the mark.

In fact, registered trademarks will receive protection up to three years before they are ever even used.

Registration facilitates the commercial use of a mark through vehicles such as trademark licensing or as collateral to secure a loan.

Creditors and investors are more likely to respect your asset if it is registered as this secures the protections outlined above.

In addition, as your business grows and you look into securing domain/website names and merchandising opportunities, if difficulties arise such as third parties claiming rights to the mark, the fact that you registered the mark since or even prior to your commencing use of the name or logo will strengthen your case.

Also, the Jamaica Intellectual Property Office's (JIPO) public register will alert prudent competitors to your mark and lead honest players to exploit other names or logos.

Not only is registration a useful asset but it shows forward thinking in that it causes businesspersons to carefully weigh the words and logos they chose to represent their products.

Using popular Jamaican and international brands, intentionally or not, will more than likely create obstacles for you during an application to JIPO. In other words, offering your products under the trademark of a well-known company might be fine as long as you remain a small outfit.

However, once you start to build up any goodwill or reputation among the Jamaican public you will almost certainly find yourself on the receiving end of lawsuits from the registered owners of the trademark.

If you had applied to register the marks or conducted a search of the register, the prior marks would have been made known to you earlier, preventing scarce resources being devoted to a brand that was owned by another entity.

Exporters of products or services to markets outside of Jamaica should also beware. Producers and service providers that rely heavily on non-Jamaican based customers are best advised to investigate the availabilityof their new trademarks for registration in the territories in which they peddle their wares to avoid being deemed infringers.

And again creditors and investors will feel more secure in supporting a company that has the foresight to register its brand in all its major markets, which will encourage further financing.

Trademark applications and searches will also reveal if a mark is non-distinctive, that is, if it designates the characteristics of or is commonly associated with the product.

These words are generally not registrable as trade marks, for example the word 'car' for motor vehicles or 'salty' for chips.

JIPO's ruling on the matter will encourage the proprietor to incorporate a design or additional words to make the mark acceptable, thereby obtaining the monopoly benefits discussed above.

All things considered, you should register your trademark because today's commerce demands it.

Roxanne Miller is an attorney with the law firm DunnCox, Kingston. Email: roxanne.miller@dunncox.com