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Intellectual property protects your ideas and creative property, which can bring great value to your business. Intellectual property can uniquely represent your business, a fact that also applies to trade marks. The more specific or unique your trade mark, the stronger your ability to capitalise on the powers and privileges it can grant you. Therefore, it is crucial that you duly evaluate how unique your trade mark is. For example, you may want to describe your products with words like ‘good’ or ‘great’. Therefore, this article will examine whether ‘good’ can be a trade mark in New Zealand.

What is a Trade Mark?

A trade mark symbolises that a good or service came from your business. You can use trade marks to promote what you sell to customers and distinguish your business from your competitors in the market. A trade mark is a valuable asset for your business, because it grants you various legal powers if others try to use your trade mark without permission.

The exact nature of what a trade mark protects can vary, but you can include the following in your trade mark:

  • words;
  • symbols;
  • logos;
  • colours; 
  • labels;
  • sounds;
  • shapes;
  • smells; 
  • phrases; or 
  • any combination of these.

Trade mark rights can exist without registration, depending on how long you have been using your mark and its established reputation in the market. However, for definitive and enforceable rights, you can register your mark with the Intellectual Property Office of New Zealand (IPONZ), which assesses your trade mark application. A key part of this assessment involves comparing your mark against what trade marks already exist and whether customers could confuse your mark with a competitor’s. The more distinctive and unique your trade mark is, the more likely your application will be successful.

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Trade Marks and Distinctiveness

What makes your trade mark distinctive depends on the nature of your trade mark and what goods or services it applies to. When assessing your trade mark, IPONZ looks at what trade marks already apply to the goods or services you wish to register your trade mark for.

For instance, if you want your trade mark to apply to your homeware and kitchen products, IPONZ will assess its similarity against other businesses trade marks for homeware and kitchen products.

To be registrable, your trade mark must be able to distinguish your business from your competitors. So, if customers were to look at your branded products and another business’, they should be able to tell which products are the ones you sell.

Therefore, you cannot register certain generic terms that describe your trade mark. These can vary, but can include:

  • generic terms as part of everyday language;
  • laudatory or praiseworthy words (words that just praise your goods or services);
  • industry-specific terms competitors need to use to promote their products generally;
  • common surnames;
  • certain geographical names; or
  • terms that just describe your goods (for example, ‘green hat’).

As a result, the best trade marks are non-descriptive and not words that people would use in general conversation to describe your goods and services. 

If your trade mark is descriptive or praiseworthy, it is hard to obtain enforceable trade mark rights. A competitor may argue that they need to use the words to describe their products too. 

The Word ‘Good’ as Part of a Trade Mark

Following this reasoning, it would be very difficult to register a trade mark that only comprises the word ‘good’. This word is a simple descriptor. Therefore, registering this term would make business very difficult for other traders. Other businesses need to use the word ‘good’ to promote their own products, and the word ‘good’ would generally not be distinctive enough to represent your business for customers.

However, this does not necessarily mean that you cannot include the word ‘good’ as part of your trade mark. For example, you may register a trade mark in your slogan or product name containing the word ‘good’. A trade mark does not exclusively apply to the word on its own but in combination with other more distinct and uniquely identifiable words.

Protecting Your Distinctive Trade Mark

The more distinctive your trade mark is, the easier it is to both establish your legal rights and prevent others from copying your trade mark. You must ensure that your trade mark retains this distinctive value as time goes on and does not become too generic a term.

For instance, the words ‘kerosene’ and ‘corn flakes’ used to be distinctive trade marks, but became such a generic part of everyday conversation that they lost their distinctive value. This process resulted in the erosion of their trade mark rights.

Notably, you can take steps to improve your trade mark’s visibility and ensure that others are aware of your official trade mark rights. These can include:

  • using the ® mark to indicate your registered rights in your trade mark (or, if your trade mark is not yet registered, using the ™ symbol);
  • distinguishing between your trade mark and other words, such as putting it in quotation marks or capital letters;
  • including asterisks on promotional materials with disclaimers/warnings about intellectual property rights; and
  • avoiding using your mark to describe your good or service as a generic term.

Key Takeaways

A trade mark must be distinctive and capable of functioning as a badge of origin for your goods or services. The word ‘good’ is neither distinctive nor representative of your business on its own as a trade mark, and is likely to be seen as simply a descriptive term. However, it can be distinctive when combining it with other unique words. 

If you need help with your trade mark distinctiveness, our experienced trade mark lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 0800 005 570 or visit our membership page.

Frequently Asked Questions

What is a trade mark?

A trade mark is a kind of intellectual property right that protects assets that identify your business and the products it provides. Common examples include your business’ name or logo.

Can the word ‘good’ be a trade mark?

A trade mark needs to be unique and represent your business. ‘Good’ is a generic term, so it is unlikely to meet these criteria. Other traders may wish to use it to promote and praise their own goods or services.

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