A Trademark is ‘…any sign capable of being represented graphically which is capable of distinguishing goods or services of one undertaking from those of other undertakings‘ . Such signs can be very valuable, the most valuable brand in the world, Coca Cola, has an estimated value of over €50 billion. The top Irish brands include Avonmore, Brennans and Tayto. The Irish regime for registering and protecting trademarks is set out in the Trademarks Act 1996. Applications for registration of a trademark are made to the Controller of Patents and Trademarks in Kilkenny. Registration confers a property right upon the owner. A trademark will be infringed by:
- ’…use in the course of trade a sign which is identical with the trade mark in relation to goods or services which are identical with those for which it is registered..’
- Use of a similar mark in relation to similar goods or services where ‘…there exists a likelihood of confusion on the part of the public, which includes the likelihood of association of the sign with the trade mark…’
- Use of a similar or identical mark in relation to similar or dissimilar goods ‘…where the trade mark has a reputation in the State and the use of the sign, being without due cause, takes unfair advantage of, or is detrimental to, the distinctive character or the reputation of the trade mark’
Whilst Ireland retains its trademark regime, that regime has been harmonised at an EU level. The Irish regime exists in parallel with that of the European Trademark Regulation. Community Trademarks are issued by the obscurely entitled Office for Harmonization in the Internal Market (OHIM). The advantage of such a mark is that, if granted, it will be valid for the entirety of the EU. OHIM is based in Alicante in Spain; since 1996 it has issued ‘…750,000 trade marks on behalf of hundreds of thousands of companies from all over the world‘.