The purpose of a trade mark is to distinguish the goods and services of one person from those of another person. For instance, Mary and Jane both bake and sell bread, but why pick Mary’s bread over Jane’s? One reason might be their trade marks! Whether it is the logo, name, or slogan, these little touches make it easy for customers to recognize which bread they want. It is about standing out and building a unique identity that keeps people coming back for more.

This brings us to the concept of distinctiveness. Distinctiveness is the element that makes a trade mark easily identifiable and sets it apart from others. It is like trying to find your friend in a crowd of people, if your friend wears a bright pink hat, you will spot them from miles away. Similarly, a trade mark should be unique enough that when consumers see it, they immediately think of you as the source of the product or service and not someone else.

In Kenya, the Trade Marks Act, specifically Section 12, emphasizes on the need for a trade mark to have distinctive elements in order to be registrable.

Section 12 of the Trade Marks Act

Section 12 of Kenya’s Trade Marks Act spells out the rules around what makes a trade mark distinctive. In short, for a trade mark to be registered, it must be capable of distinguishing the goods or services of one business from those of others.

If a trade mark is too similar to another registered trade mark or if it is generic (like calling your sneakers “Shoes”), it will not pass the distinctiveness test. Distinctiveness prevents the likelihood of confusion in the course of trade for similar goods and services in the market.

Why Does Distinctiveness Matter?

1. Recognition: A trade mark that is distinctive makes it easy for consumers to recognize your product among the sea of competitors. Distinctiveness helps build brand loyalty. If people know it is you, they will keep coming back.
2. Legal Protection: A distinctive trade mark is eligible for legal protection, meaning that one can enforce against any unauthorized use of the trade mark.
3. The Creative Touch: Creating a distinctive trade mark gives you the freedom to express your brand’s personality. It’s a chance to be creative.

What Makes a Trade Mark Distinctive?

Now that we have got the basics, let us dive into what makes a trade mark stand out legally. The Trade Marks Act (Section 12) gives some useful pointers:

• Inherently Distinctive: This refers to trade marks that are automatically unique and cannot be confused with others. Think of names or logos that have no obvious connection to the product, like “BIC” for writing materials.
• Distinctiveness Through Use: Sometimes, a trade mark may not seem unique at first, but with enough use and recognition in the market, it gains distinctiveness. If your logo or name becomes associated with your business over time, it may acquire enough distinctiveness to be registered.
• Avoid Generic Terms: When deciding on what trade mark to use, you want something that is unique and memorable, something that creates a lasting memory.

In Summary: Keep It Unique, Keep It Safe

Distinctiveness is what makes your brand shine. It is not just a legal requirement, but a business strategy that helps you stand out from the competition. When your trade mark is distinctive, it is more likely to succeed, thrive, and avoid any confusion in the market.

It is not enough to simply claim ownership of a logo or name you must prove that your trade mark is truly distinctive. So, as you brainstorm your next big idea, keep this in mind: be unique, be memorable, and above all, be distinct!

Should you require any further information, please contact us at info@cfllegal.com.