Company’s Name vs Trademark

Nazri Ahmad — Wed, 16 Jun 2021 02:23:20 +0000

Bahasa / Language:	English Melayu Indonesia

There is often confusion when business owners think that after registering their business/company with the Companies Commission of Malaysia (SSM), their business name is automatically trademarked. Many questions arise, such as:

“Isn’t the business name trademarked after registering with SSM?”
“Is registering with SSM alone not enough?”
“After registering with SSM, do I still need to register with MyIPO?”

To answer these questions, let’s start by explaining the difference between business registration and trademark registration.

What is the difference between a trademark and a company name?

The trademark of a business name and the business/company name registration are two different things. Let’s look at the situation in Malaysia.

1. Legal Framework

Registering a business (e.g., sole proprietorship/partnership or Limited Liability Partnership) or a company (Sdn. Bhd.) and registering a trademark are governed by different laws. Business registration is regulated by the Business Registration Act 1956, while trademarks are governed by the Trademarks Act 1976.

2. Regulatory and Enforcement Agencies

Business or company registration can be done with SSM (Suruhanjaya Syarikat Malaysia), whereas trademark registration must be done through MyIPO (Malaysian Intellectual Property Corporation).

3. Registration Requirement

Business or company registration is mandatory if you intend to run a business in Malaysia. Trademark registration, on the other hand, is optional but highly recommended for business protection.

4. Business/Company Name vs. Trademark

The name chosen for your business or company must be unique and not identical to other registered business/company names. However, similar names may still be allowed in business/company registration.

For example, PETRONAS DAGANG could be registered even if PETRONAS is already taken as a company name. Similarly, ADIBAS Sdn. Bhd. could be registered even though ADIDAS exists.

In contrast, any name, word, logo, number, or brand that is to be registered as a trademark must not be the same or even similar to existing trademarks. For instance, ADIBAS could be rejected as a trademark because it sounds too similar to ADIDAS.

There have been cases where companies faced legal action for using trademarks that were too similar to existing ones. For example, the use of the trademark Chipsplus led to legal action from Chipsmore, which was already registered.

5. Using Company Name vs. Trademark

Registering a business or company name allows you to legally operate a business in Malaysia. Registering a trademark, however, grants you exclusive rights to the trademark under the law. Once a trademark is registered, you have both moral and economic rights over it.

Others cannot use your trademark without permission. If they do, they would need your consent and may have to pay for a licensing fee.

Do I Need to Register a Trademark After Registering with SSM?

So, once you have registered your business or company with SSM, do you still need to register a trademark? The answer is YES! Is registering with SSM alone sufficient? NO! Why?

Because they serve different purposes. Although trademark registration is not mandatory, it provides moral and economic benefits, as explained earlier.

Can You Trademark Your Business Name?

If you’ve already registered your business or company name, can you still trademark the same name?

According to Section 10(1)(a) of the Trademarks Act 1976, a business or company name can be registered as a trademark as long as it is unique and does not resemble or sound similar to an already registered trademark.

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The Role of Trademark in Business

Nazri Ahmad — Wed, 01 Jan 2020 07:21:30 +0000

Many people assume that the role of trademarks is simply as a marketing tool, limited to company names, product names, and logos. In reality, trademarks serve five important functions for businesses:

1) Trademark as an Identifier of the Product/Service Source

When purchasing products, we often choose brands we’re familiar with because we trust their quality. This first function is to identify the source of the product or service. For example, we know that Nestle produces quality products like Milo, Maggi, and Nescafe.

2) Trademark as a Tool for Consumers to Make Choices

Trademarks help consumers easily distinguish between different products or brands. Without trademarks, making choices between similar products would be much harder. For instance, trademarks like Faiza, Cap Naga, or Cap Rambutan help us choose different brands of rice without confusion.

3) Trademark as a Quality Indicator

A registered trademark is often directly associated with the quality and reputation of the product or service provider. Brands like SAMSUNG, APPLE, and HUAWEI are known for their quality smartphones, which are preferred by consumers even though they may be more expensive.

4) Trademark as a Marketing Tool

A registered trademark becomes the focal point in marketing and advertising. For example, advertisements that trigger consumer emotions, like Pizza Hut’s cheesy pizzas or KFC’s crispy fried chicken, can leave a lasting impression linked to the brand.

5) Trademark as an Economic Asset

The fifth function is lesser-known. As a business grows in profitability and reputation, the value of its registered trademark increases. Trademarks can be licensed, franchised, or sold in the future. For instance, the trademark for Maybank alone is valued at RM 10 billion. Understanding these functions highlights the importance of registering your trademark. Without registration, your brand could be at risk, especially if someone else registers it first. So, take the initiative and protect your brand by registering your trademark today. Link: https://www.daftartrademark.com/2020/03/16/5-fungsi-trademark/

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