Trade Mark Use: From Goods to Services

Section 2(2)(b): Using a Mark in Print or Visual Representation

Provision

“The use of a mark shall be construed as a reference to the use of printed or other visual representation of the mark.”

Explanation

Here’s the deal: a trade mark isn’t just about a logo or a catchy tagline floating in the abstract. It must be visibly represented — whether it’s on your product, packaging, advertisements, or even a billboard at Times Square.

Funny Take: If no one can see it, your mark might as well be an invisible cloak. Unfortunately, the law doesn’t protect Hogwarts branding magic.

Section 2(2)(c): Using Marks on Goods and Services

Provision

(i) In relation to goods, use means applying the mark upon or in any physical or other relation to the goods.
(ii) In relation to services, use means applying the mark as part of any statement about availability, provision, or performance of services.

Explanation

1. Goods: The trade mark must appear on the goods or be physically associated with them. Think of the iconic Apple logo stamped on your iPhone or the label on a Gucci handbag.
2. Services: For services, the trade mark can appear in promotional materials, advertisements, or any representation communicating the availability or quality of those services. For example, when you see “Netflix” plastered across your screen, the mark signals the source of the streaming service.

Funny Take: If you’re selling cupcakes and only whispering your brand name to customers, you’re doing it wrong. Put that logo where people can see it — preferably not on the underside of the box.

Section 29(6): The “Infringement Checklist”

This section explains what counts as “using” a trade mark for purposes of infringement. Here’s the breakdown:

Provision

For the purposes of this section, a person uses a registered mark if, in particular, they:

(a) Affix it to goods or their packaging.
(b) Offer, expose, stock, or sell goods/services under the mark.
(c) Import or export goods under the mark.
(d) Use the mark in business papers or advertising.

Explanation

This section creates a checklist for actions that constitute trade mark use. Essentially, if you’re engaging in these activities with a registered trade mark, you’re either its lawful user — or guilty of infringement.

1. Affixing to Goods/Packaging: Slapping your brand’s logo on your product or its package is a direct use of the mark. It’s the ultimate declaration: “This is mine.”
2. Offering or Stocking Goods/Services: Displaying items in your shop or e-store with a trade mark associates the goods or services with your business.
3. Import/Export: Moving branded goods across borders under a trade mark extends its global presence — and, if unauthorized, becomes a global headache.
4. Business Papers/Advertising: Using a mark on business cards, invoices, or even email signatures signifies ownership and promotes the brand identity.

Funny Take: If you’re pasting a famous logo on your business flyers without permission, prepare for a cease-and-desist letter so beautifully crafted, it could be framed as art.

Practical Insights on “Use” and “Infringement”

1. Brands and Ownership: Trade marks act like a brand’s ID card, and any unauthorized use feels like identity theft.
2. Global Commerce: Importing/exporting goods under a registered mark without authorization? Congratulations, you’re now part of a legal thriller that ends in court.
3. Advertising Missteps: If you use someone’s registered mark in your campaign thinking, What’s the harm?, the harm is a lawsuit — and your profits funding someone else’s brand.