With itsbreadth and importance, Distinctiveness is the mother pillar of a trademark. Theuniqueness of any trademark or service begins to be measured using this pillar.This means thatthere is no time especially in this world of commercial competition that youcan talk about the strong brand without looking at Distinctiveness.And that is whyit is not surprising to see writers in the field of intellectual propertyexplaining Distinctiveness as a cardinal characteristic of a trade mark.
So,distinctiveness is the abilityof a mark to have a unique identity that distinguish it from the other goods orservices that makes it registrable. Fora mark to be registered, mark has to be distinctive one. Once a distinctivemark is registered it will be protected, enforceable and valid.
InTanzania, distinctiveness as a pillar of trademark is well regulated. A trade orservice mark is only eligible for registration if it is distinctive. In orderto be distinctive, the mark has to have uniqueness capable of distinguishing itfrom goods or services of other marks.
There are basic things you need to have in mind to know if your trademark has met the distinctiveness criteria which are inherent distinctiveness of a mark as well as distinctiveness acquired by use or other circumstances. Example of inherent distinctiveness marks are words that are created by combining a word or words or symbols that do not have a direct relationship with the products or services.
Regarding use, the law does not indicate the period and extent of use. The use must be proved by sufficient evidence and must be done at any place in Mainland Tanzania.
Thenthe distinctive mark has to be registered. Once it is registered the owner of the markwill be granted an exclusive right over a mark. Having exclusive right over amark prevents other people from using the mark. Under section 32 of the tradeand service mark act, addresses the infringement of exclusive right andprohibits acts that would impair distinctive character.
About the Author.
MkamaMagoti Kalebu is the Managing Partner at ENDO & Co. Advocates. He is anadvocate of the High Court of Tanzania, Notary Public and Commissioner forOaths. He is an Advocate of the Highcourt of Zanzibar; Member of The Pan African Lawyers Union (PALU) and a Memberof the East Africa Law Society Intellectual Property Committee.
Apartfrom advising on private international laws, Mkama leads the IntellectualProperty, Technology & Media, Telecommunications and Data ProtectionPractices team at ENDO & Company. He handles both contentious andnon-contentious matters in the areas of intellectual property ("IP"),media, information technology ("IT"), data protection andtelecommunications law, and has extensive experience working on regulatory,transactional, enforcement and advisory projects in these areas, counting amonghis clients’ multinational companies, listed corporations and governmentregulators.
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