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Creation of legal rights - Trademarks

We live in an age where innovation is at the heart of everything we do. We now have people being creative on a variety of global platforms which, amongst others, include social media and developing and/or holding digital assets. However, as David Ogilvy initially said - and in essence cited by Emmy and Golden Globe award winning actor Jon Hamm’s character Don Draper in the highly popular TV series Mad Men - "It's useless to be creative unless you can sell what you create." 

Part of being able to sell what you create is ensuring that you create legal rights over your creation and exclude others from using it together with avoiding others creating legal rights that cause issues for you to use your own creation. An example of this is the use of trademarks and the registration of the same.

Whilst registration of trademarks is not mandatory and in very limited circumstances (usually within a relevant geographic area) the unregistered first user of a trademark can often claim trademark rights, by not registering your trademark you may:

(i) not be able to stop others from using it;

(ii) expose yourself to theft as any person is free to register that trademark (and whoever obtains this right, can prevent you from using the trademark or could demand payment for its use);

(ii) incur loss of business opportunity as you can’t assign or guarantee it together with finding it difficult to find potential partners/investors: and

(iv) allow for confusion as consumers may believe that it is the same product or service, thus generating losses in sales. Therefore, you must avoid at all costs the entry of a brand similar to yours in the market.

Trademark registrations are usually a simple and cost-efficient process which protects the user against the many risks involved in not doing so. In relation to the registrations of trademarks in Gibraltar, although Gibraltar is not a primary jurisdiction for registrations (but rather registrations in Gibraltar can only be made once registered in the UK (or in the EU if registered through the recently created UK comparable registrations)), we have a secondary registration regime which aims to seek further protection of the relevant trademark and also the opportunity of commercialising the use of your trademark (and any intellectual property you may have).

Trademark registration is a foundation for building a valuable asset. "It's useless to be a creative unless you can sell what you create", Don Draper, Mad Men.

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