You will likely see hundreds of trademarks today, merely by walking down Reid Street.

Every shop that you enter will be filled with goods bearing a trade mark, every car that you see, all the clothes that people wear, many of the items in your homes, all will be marked with a logo of some kind.

This may be of little consequence to you, but to the businesses they represent the importance is immense. Billions of dollars are spent every year by companies to promote and protect these trademarks, which indicates the level of importance that is placed upon them.

A trademark is simply a mark used in relation to either goods or services, that is intended to indicate a connection in the course of trade between those goods or services and a particular proprietor. Their importance is that they differentiate the goods or service represented by that particular mark from others in the same sector.

Marks have been used since the Roman era when it was common to emboss pottery with a mark such as the initials of the maker or a representation of some kind e.g. a dolphin. This practice developed and in sixteenth century England shopkeepers began to erect signs indicating their trade. The industrial revolution resulted in an explosive growth in the use of marks, some of which were spectacular works of art.

The rationale for trademarks is firstly to protect business reputation and goodwill and secondly to protect consumers so they don't buy inferior goods. With their increasing use came a legal framework that has been developed into the international levels of protection that we have today. In Bermuda the law is based both in statute and common law (law developed through the Courts). A mark must be distinctive and not descriptive of the goods or services that it represents. The reason for this is obvious. You cannot obtain sole rights to use a name that merely describes what you do as it would prevent others operating in the same sector telling the public what they did.

For example a company that sells oranges in Bermuda could not obtain rights in the mark "The Bermuda Orange Company". Trademarks are sector specific, and consequently the mark must not infringe other marks in the same sector. This is why you can have Apple Computers and the Beatles holding company 'Apple' trading at the same time. Because they operate in different sectors there will be no confusion in the marketplace.

When two marks that are sufficiently similar to each other operate in the same area a right of action may arise based upon this 'confusion' and could lead to a claim for damages. Therefore when selecting a mark you should conduct searches that will enable you to ascertain if there are any conflicting marks in your business sector. To do this in Bermuda is relatively straightforward as you may search the database at the Trademark Registry. In other jurisdictions professional assistance should be sought.

The mark should always be used consistently. Any failure to do so could lead to rights being lost. Copies of all representations of the trademark should be kept at all times. These may be of use when making a claim against someone else for an infringement and showing use of the mark within the jurisdiction.

You should consider registering your mark in all jurisdictions where it is used commercially. In Bermuda, that means registering the mark at the Registry. There is a small cost in doing this but the benefits are such that it is a worthwhile exercise. A trademark once registered is good evidence of ownership of that mark.

On the other hand you could still acquire rights to a mark that remains unregistered. This is because the Courts have recognised that a business that invests time and money in developing goodwill for a mark should receive some level of protection.

The difference between the two types of protection lies with the element of proof. With an unregistered mark you must first prove ownership which can sometimes be problematic whilst this may be proved for a registered mark by merely providing a copy of the registration certificate.

Trademarks are valuable property and can provide an income stream in their own right. Many trademark owners have developed new lines of business completely unrelated to their original purpose. For example an industrial equipment manufacturer now selling casual clothes. Many do this by licensing their trademark and receiving an income stream on the income provided by these new lines. Others provide franchising opportunities to people. These again are based primarily upon the use of the mark.

Businesses in Bermuda should review the use of their trademarks and where necessary obtain the protection of registration. Where necessary this should form part of an intellectual property audit to identify, protect and fully exploit the company's property.

Attorney Graham Wood is a member of the Telecomm team at Appleby Spurling & Kempe. Copies of Mr. Wood's columns can be obtained on the Appleby Spurling & Kempe website at www.ask.bm.

This column should not be used as a substitute for professional legal advice. Before proceeding with any matters discussed here, persons are advised to consult with a lawyer.