Everyday almost every article we use, purchase or devour is sold using a trademark, and recent changes have increased the types of trademarks and their importance to textiles.

A trademark is any mark used to distinguish one person’s goods from another in the market place. A mark now includes any sounds, shapes or scents besides the logos, signs, words or symbols.

Owning a trademark gives the owner a monopoly in the use of the mark for the goods or services sold under the name, and allows the owner to prevent others using a deceptively or confusingly similar name to the mark. Whilst business names and company names are often confused with trade marks, these names were developed as a way of ensuring people who used another name could be found – to be sued – and not as a method of owning a name. Business and company names do not give the owner any rights of ownership to the name, only the right to prove you are known by that name and have goodwill in the name.

Certain things which could be business names cannot be trade marks; these include common surnames, geographical names and words that describe what they do or sell. To describe your products as "Orwoola" for textile fabrics will not achieve registration because it describes the material being used even though it is a miss-spelt form of all wool’ and pronounced the same. (A manufacturer in England tried this in 1910 and failed…).

Even with this limitation, trademarks are wider in scope than business names because they now include the shape of bottles or packaging used to sell items, scents and sounds.

What relevance is this to the textile maker? There are a number of reasons this is relevant:

1. Using a distinctive name for your product range and articles gives you the ability to claim a monopoly. This monopoly right can be included as an asset on your balance sheet like the ownership of real property.
2. Many designers and artists are involved in developing corporate ranges of clothing and need to know about ownership and use of the trademark. Many designers and artists are involved in developing corporate clothing or hired to re-image businesses. Part of the brief may require the use of an existing logo or development of a new and original design that will tell the world that this is ZXC Inc. If you are commissioned to design such a fabric, the organisation will allow you to use their logo in the design, but you do not own the logo for use on any other works or for other assignments or commissions.
3. Designers and artist using or including trade marks in their creative works: use in this case is allowable if it is only as a minor element in the work and the logo is not used to sell the work you have produced under that name. For example, using a Coke bottle, or Macdonald’s packet in a weaving showing litter collected after the "Clean Up Australia Campaign" does not infringe the rights in these trade marks because they are not being used to sell the weaving as a Coca-Cola weaving or a Macdonald’s weaving. If the use of the logo is to sell the weaving as a "Coca-Cola Artwork" this is using the logo as a trademark and cannot be done without Coca-Cola’s approval.
4. Some marks are used for the prime purpose of ensuring a product is made from pure new wool and it is a guarantee against the wool being adulterated with other fibres. An example is the Woolmark for "pure new wool". This mark is a certification mark, owned by the International Wool Secretariat, which specifies precise rules for the use of the Woolmark. Similarly the Harris Tweed Association Ltd owns the Harris Tweed mark and polices the rules and defends its mark where necessary.

These reasons show how marks are often of importance in the textile arena, but it is necessary to understand how a trademark can be infringed to avoid trouble in the future.

Trademarks are infringed if they are the same in sound or they are visually the same, or so substantially similar that the ordinary man would be confused. Thus it is necessary not to choose names that could sound similar to existing trademarks. Chanel lost in a case against another firm which wanted to use the word Chantel because the pronunciation is completely different to that of Chanel. If the mark is a shape of a bottle, and you use a substantially similar shape you will infringe the trademark in the shape of the bottle.

The ultimate moral to this story is: use a creative and original name as a trade mark, not as a business name so you can put value in the name as an asset in your business and avoid copying someone else’s logo. The law protects creativity, not copyists.