What is a trade mark?
The sign that tells your customers a product is yours. What counts as a trade mark in South Africa, what does not, and how registered and unregistered rights differ.
A trade mark is the badge that tells your customers a product or service comes from you and not from someone else. In South African law it is defined in section 2(1) of the Trade Marks Act 194 of 1993 as a mark used, or proposed to be used, in relation to goods or services for the purpose of distinguishing them from the same or similar goods or services connected with another trader.
That one word – distinguishing – does most of the work. A trade mark is not a description of what you sell. It is the thing that separates your version of it from everyone else’s.
The short answer
- A trade mark is a sign that distinguishes your goods or services from someone else’s.
- It can be a word, a name, a logo, a slogan, a shape, a pattern, a colour combination or even a sound.
- You get some rights simply by using it and building a reputation. You get much stronger rights by registering it.
- Registration in South Africa is done at CIPC, lasts ten years, and can be renewed indefinitely.
- It is not a company name, a domain name, copyright, a patent or a registered design – those are different things, and registering one does not give you the others.
What can be a trade mark
Almost any sign capable of distinguishing, provided it can be represented graphically. In practice these are the categories South African applicants use most.
| Type | What it means | Example of the idea |
|---|---|---|
| Word mark | The word or name itself, in any font or styling | A made-up or arbitrary brand name |
| Logo / device | A graphic, symbol or stylised design | A figurative emblem used on packaging |
| Composite mark | Word and logo together as one mark | A wordmark locked to its symbol |
| Slogan | A short phrase, if it does more than describe | A tagline that identifies the source |
| Shape / container | The three-dimensional shape of goods or packaging | A distinctive bottle silhouette |
| Colour | A colour or combination, where it has come to identify you | A single colour applied to a product line |
| Sound | A short audio signature, represented graphically | A start-up chime or jingle |
The harder question is usually not what type of mark it is, but whether it is distinctive enough. A mark that simply describes the goods – or that every competitor would legitimately want to use – will struggle, and may be refused or accepted only with a disclaimer.
Trade mark examples: what does and does not work
The distinction that matters is between marks that describe and marks that distinguish. The same word can fall on either side depending on what it is being used for.
| Strength | Character of the mark | Why |
|---|---|---|
| Strongest | Invented words with no meaning at all | Nobody else has any reason to use them, so they are almost always registrable |
| Strong | Real words used for something unrelated to their meaning | The word is arbitrary in that context and does not describe the goods |
| Workable | Words that suggest a quality without stating it | Suggestive marks are usually registrable; they hint rather than describe |
| Difficult | Words that describe the goods, their quality, purpose or origin | Other traders need those words. Often refused, or accepted with a disclaimer |
| Not registrable | The ordinary name of the product itself | Generic terms cannot distinguish one trader from another |
A practical rule: if a competitor selling the same thing would need your word to describe their own product honestly, it is probably too descriptive to own outright. Search the register for your name and you will quickly see which side of the line it sits on.
Registered and unregistered trade marks
South Africa is a first-to-use country, not first-to-file. This matters, and it is the point most online guides get wrong.
If you have genuinely used a mark and built a reputation in it, you have common-law rights and you can act against someone who passes their goods off as yours – even if they got to CIPC before you did. What you would have to do is prove that reputation: evidence of use, turnover, advertising, how long, how widely, how well known.
Registration does not replace those rights. It adds statutory ones on top, and it removes the hardest part of enforcing them.
| Unregistered (common law) | Registered | |
|---|---|---|
| Where the right comes from | Actual use plus reputation | The register, from your filing date |
| What you must prove to enforce | That you have a reputation and the public is being confused | That the marks and goods are confusingly similar |
| Geographic reach | Only where you can show reputation | The whole of South Africa |
| Against a newcomer with no reputation | Possible, but you carry the burden | Strong – the register speaks for you |
| Cost of enforcing | High: reputation evidence is expensive to assemble | Lower: the certificate is the starting point |
| Term | As long as the reputation lasts | 10 years, renewable indefinitely |
So the honest framing is not “register or you have nothing”. It is: registration converts a right you would have to prove into one you simply hold. And the person who registers first secures those national rights against everyone who cannot show an established prior reputation.
What a trade mark is not
Four things get confused with trade marks constantly. Registering one of them does not give you the others.
| This protects… | It is called | And it is not a trade mark because… |
|---|---|---|
| Your brand name, logo or slogan | A trade mark | — |
| Your company’s legal identity at CIPC | Company name registration | A registered company name gives you no right to stop anyone using that name as a brand |
| Your website address | Domain registration | A domain is a rental from a registrar, not a property right in the name |
| Original creative work – text, images, music, code | Copyright | It arises automatically under the Copyright Act 98 of 1978 and cannot be registered here |
| A new invention or technical solution | A patent | Patents cover how something works, not what it is called |
| The appearance or shape of an article | A registered design | Designs protect how something looks, for a limited period |
The company-name confusion is the expensive one. Reserving a name at CIPC clears it against other company names. It does not check the trade mark register, and it gives you no right to stop a competitor trading under that brand. Those are two different registers doing two different jobs.
What a registration actually covers
A registration is granted for a specification – the particular goods or services you listed – inside one of the 45 classes. This is worth being precise about, because it is widely misunderstood.
Filing in a class does not give you the whole class. Your protection is the wording of your specification. If you registered for “t-shirts” in class 25, you have not automatically covered footwear in the same class. Extending into goods you did not list needs a fresh application – even where the class is one you already hold.
Getting the specification right at filing is therefore the single most consequential drafting decision in the whole process, and the one most DIY applications get wrong.
™ and ® – the quick version
™ may be used by anyone claiming rights in a mark, registered or not. It signals a claim; it carries no statutory weight on its own.
® may only be used on a mark that is actually registered in South Africa. Using it on an unregistered mark is an offence under section 62 of the Act, punishable by a fine or imprisonment of up to 12 months.
There is a fuller explanation, including how to type each symbol, on the ™ vs ® page.
How you get one
In outline: search the register first, choose the right classes and draft the specification, file at CIPC, wait for examination, deal with any objections, then publication and registration. A clean single-class application costs R2,990 all in – professional fee and the CIPC official fee together – with no further cost to registration unless the examiner raises conditions.
The CIPC how-to guide walks the whole route, including the DIY option and where self-filed applications usually come unstuck. The cost guide sets out every fee that can arise and when.
Written and reviewed by
Stephan Viollier – Trade Mark & IP Attorney, SAIIPL-certified, admitted in South Africa and the United States (New York)
This page explains South African trade mark practice in general terms. It is information, not legal advice on your particular mark – for that, talk to us.
Common questions
What does trademark mean, in plain English?
It means a sign that identifies where a product or service comes from. If customers see it and think “that is made by that particular business”, it is doing a trade mark’s job.
What is the definition of a trade mark in South African law?
Section 2(1) of the Trade Marks Act 194 of 1993 defines it as a mark used or proposed to be used in relation to goods or services for the purpose of distinguishing them from the same or similar goods or services connected with another trader. “Mark” is itself defined broadly enough to include words, names, devices, shapes, patterns, colours and containers.
Do I have a trade mark if I have not registered it?
Possibly. South Africa recognises common-law rights built through actual use and reputation, and you can act in passing off. But you would have to prove that reputation, which is slow and expensive. Registration gives you a right you simply hold rather than one you must establish.
Is my registered company name a trade mark?
No. A company name registration records your company’s legal identity at CIPC. It does not give you the right to stop anyone else using that name as a brand, and it is checked against a different register. Many businesses discover this only when someone else registers their name as a trade mark.
How long does a trade mark last?
Ten years from the filing date, renewable every ten years for as long as you keep renewing. There is no limit on the number of renewals, so a mark can be held indefinitely.
What is the difference between a trade mark and copyright?
A trade mark protects the badge you trade under. Copyright protects original creative work – the wording, the artwork, the photograph, the code. Copyright arises automatically in South Africa under the Copyright Act 98 of 1978; there is no register to file it on. A logo can attract both: copyright in the artwork, and a trade mark in its use as a brand.
Can two businesses have the same trade mark?
Yes, if they are in genuinely different fields and there is no likelihood of confusion. The register is divided into 45 classes for exactly this reason. Whether two marks can coexist turns on how similar the marks are, how similar the goods or services are, and how distinctive the earlier mark is.
