oa De Jure - Trade mark law : can an unregistered mark beprotected prior to the acquisition of a reputation? : note

Volume 48, Issue 2
  • ISSN : 2225-7160



It is generally accepted that a 'mere' trade application fixes the date of application, and not much else. Instead, the focus is on the two standard forms of protection which exist in relation to a trade mark. Firstly, a trade mark registration, which is arguably the most effective form of protection. Protection in terms of the Trade Marks Act (194 of 1993) is available immediately, on registration, and is not, in the short term, dependent on the use of the mark. The registration will also automatically extend across the country. Secondly, in the common law, the remedy of passing off exists. This remedy will only be available once a reputation has been established.

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