A registered trade mark is a statutory right which is only
obtained in South Africa through registration of that trade mark in
terms of the Trade Marks Act, 1993. That registration is necessary
for statutory protection of a trade mark* is the position generally
in the world and, in numerous civil law countries, trade mark
rights are gained only by registration so, if no trade mark
application has been filed, the entity using that trade mark has no
legally enforceable right to it at all. Given that the trade marks
of certain businesses are among their most valuable assets, this is
akin to leaving your money at the side of the road and hoping
no-one picks it up!
In the common law countries – generally those that have
legal systems derived from the English system – including
South Africa, the position is not quite so dire because common law
recognizes a type of trade mark right in an unregistered trade mark
in the interest of protecting the public from fraud. In order
