Protect Your Business By Registering A Trade Mark

Many business owners assume that they have exclusive use of their business name simply because they’ve registered it with ASIC as a business name.

It is a legal obligation in Australia to register a business name if you conduct business under a name other than the name of the legal entity that owns the business.  But this doesn’t mean that your business is protected.

Registering your business name doesn’t give you any legal rights to the use of that particular name.  It also doesn’t prevent anyone else from registering a similar name.  What’s more, if you use a business name that is similar to one that has already been registered as a trade mark, you may actually be exposing yourself to legal issues.  In fact, when you register a business name in Australia you are presented with a series of tick boxes to check before you start your application and one of those is to inform you of precisely this.

There’s a huge difference between registering a business name and registering that name as a trade mark.

Without the legal protection of a registered trade mark, you run the risk that someone else could simply copy your name and benefit from all your hard work and investment.  Worse still, you could find that your reputation (and in all likelihood, your profits) are eroded because people have mistaken an inferior product or service for your high quality business because the names are very similar.  You also run the risk of a trade mark owner demanding you rebrand if you are infringing their rights.

In most instances, this occurs simply because businesses haven’t realised they should consider trade mark registration and usually there is no malice intended.  However, there are situations where unscrupulous business owners have deliberately traded off of someone else’s hard-earned intellectual property. Obviously  it feels morally wrong when this occurs (intentionally or not) – but unless the name has been registered as a trade mark, it is not always legally wrong.

So what should business owners do to protect their businesses?

Very simply, business owners need to protect their businesses by registering their trade marks and any other intellectual property they have.  And it doesn’t matter whether the entity is a national conglomerate or a small, everyday operation, if you run a business, you need to register a trade mark for the protection of your names, brands and logos because it can be an extremely valuable business asset.

You can register a business name as a trade mark as well as a wide variety of other ’signs’ that you use within your business including a domain name, logo, pictures, graphics, slogan or tag line. If you have a unique product design this may also be protectable – either by registering it as a design, or, where that’s not viable, by considering registration as a ‘shape’ trade mark or similar, Even sounds, music, colours, smells can be registered as trade marks.    Generally speaking, irrespective of the type of ‘sign’, a trade mark can only be registered if it complies with trade mark laws and is not too similar to an existing trademark and isn’t generic or overly descriptive.

That said, there are different ways of protecting different intellectual property.

Depending on what you wish to  protect, you may need to consider trade mark registration as discussed above or things such as copyright, patents, designs etc which are all complex areas of law.   Irrespective of the type of intellectual property involved, it is worth seeking professional advice.  For trade mark applications/registrations speak with a trade marks attorney for example, and, with a patent attorney if you have patent or design rights to consider. Your intellectual property is a valuable asset (which often requires considerable investment) and it is good business practice to ensure that that asset is protected as comprehensively as possible.

Without the protection of a registered trade mark, others could establish a business or launch a product with a confusingly similar same name as yours.  In today’s highly competitive business world where online searches often dish up a range of confusingly similar results, it is even more critical that businesses protect their intellectual property.

It is easy to do a quick online search to see if your chosen name has already been registered, but there are many other aspects that need to be considered. For example, even if there are no identical trade marks, are there ‘deceptively similar’ trade marks? Is your name distinctive enough to function as a trade mark?

The world of intellectual property, including trade marks, is complex and it is a good idea to get professional advice from an experienced practitioner to give your business the best chance of full legal protection over its intellectual property.

Jacqui Pryor

Jacqui is a registered trade marks attorney with the Trans-Tasman IP Attorneys Board and is the founder and owner of Mark My Words Trademark Services Pty Ltd.

After being introduced to the world of trade marks in one of her first jobs after high school, Jacqui discovered she had a deep passion and interest for all things to do with protecting brands and intellectual property. She completed a Graduate Certificate in Trade Mark Law and Practices as well as a Diploma in Business Management and then set up her own business in 2011.

Her motivation for starting Mark My Words was to support SMEs which typically couldn’t afford such a service and while the company has grown in both size and reputation over the years, she has remained true to her founding principles of providing professional, friendly, reliable and affordable trade mark services to all.

Mark My Words now has a client list that spans businesses of all sizes across a range of industries. It provides advice and assistance on all types of complex trade mark registrations, infringements and opposition matters both in Australia as well as overseas.

Jacqui’s wealth of experience, broad range of professional qualifications and her ongoing participation in industry forums and networking platforms keeps her at the forefront of developments in the global trade mark arena. Her expertise in her field has also led to several nominations as a top individual trademark attorney by the World Trademark Review - the world’s leading trademark intelligence platform.

To keep up to date with the latest in the field of trade marks, follow Jacqui and MMW Trademark Services on Facebook.

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