The Ramifications of Not Registering a Trademark

As a business owner it’s important that you are putting yourself in a positon to avoid as many risks as possible.  The first place to start in this process should be to register and protect your trademark.  Before deciding not to register your trademark, or putting it in the ‘later basket’, it’s vital you’re aware of the possible repercussions of the decision not to protect your intellectual property.

By registering your business name, names of products and logos as trademarks you gain control over not just what you can use and represent in the marketplace, but who else can or can’t use your names and logos. It makes no sense to pour your blood, sweat and tears into your business only to leave it open for another trader to infringe upon your rights.

Trademark law is a complex procedure with many variants involved in choosing the right level of protection for your brand. Therefore, we always recommend you seek the aid of an independent professional before beginning the process of registering your trademark.  Doing so will ensure your application is accepted, and that you receive the full level of protection you require.

What Will Happen if I Don’t Trademark my Business Name?

Going into any type of business carries with it a certain level of risk.  The one area you don’t want to be worrying about is losing control over your business due to trademark infringements.  Ideally you want to maintain as much control over your brand and assets as possible.  This also includes not infringing on the rights of other traders, which can lead to very costly legal disputes.

Three top reasons to register your trademark as quickly as possible:

  • First off, trademark registration gives the owner of that trademark the legal right to use it. If you don’t register your brands, logos and names as trademarks there are no guarantees that you have the right to use them.
  • The second reason follows on from the first point, in that by not registering your own trademark and conducting business by the use and promotion of your business names and logos, you may be unknowingly infringing on another trader’s registered mark.  Doing so without permission from the other party could be seen as breaking trademark laws and result in the trademark owner demanding you cease trading under all relevant names, logos and associated assets.  Without a solid defence to these allegations you may end up having to change your business names and logos, which could have a costly and detrimental effect on your entire business and lifestyle. It makes no sense to invest time and money into building your brand, which may include signage, products, uniforms, an online presence, marketing and advertising – only to have to begin again because you didn’t take the time to trademark your business.
  • Thirdly, by not having a registered trademark, another trader can start using a similar name to yours in your industry, and you may have no power to stop them. Imagine a potential situation where one of your competitors moves into the next suburb you’re trading in, and happens to be using a similar business name.  The chances of that causing considerable confusion within the marketplace are extremely high.  Now imagine you’re powerless to prevent them from trading in your area.  By having a registered trademark, you put yourself in a much better position to enforce your rights and stop any confusion from taking place.

There are some exceptions to the power an unregistered mark can have, under common law and other legislation.  One example would be, if an individual has been using an unregistered trademark but has built a level of noteworthy reputable value associated with it, they may be in a situation to have some control over stopping other traders from using the same name. This may be possible if it was deemed likely someone was trying to mislead consumers into thinking the two were affiliated in some way.  However, it is not recommended that you rely on this option; as owning a registered trademark is the optimal way of ensuring you retain control over your intellectual property.

As a Small Business Owner – Will Not Having a Registered Trademark Impact me More?

There’s many reasons why as a small business owner you may be impacted greater from not registering your trademark than large business owners.  Larger companies usually have the financial and legal means to be fully protected under trademark laws, or if not, in a better situation to defend their case.

As a small business owner, you may not feel that you’re established enough in the marketplace to warrant the cost of trademark registration – that it’s something you’ll take care of once you’re more viable.  This is a mistake sometimes made by smaller, start-up businesses and one which often comes back to haunt them.  Don’t be that business that spends all that time and money investing in their brand, only to discover another person has already registered a trademark for the same or a similar name for their business or product.

We recommend small business begin the trademark registration process as soon as they can.  It’s the best way to avoid the headache and financial loss often associated with putting off the protection of their intellectual property.  When you use our services the entire cost of registration can be as low as $895.00, inclusive of government and professional fees. (This fee relates to a standard application under a single class and assumes no objections or oppositions). Using a professional service such as ours will result in national brand protection for 10 years.

Most small business owners should be able to register their own business names with the Australian Securities and Investment Commission (ASIC) – as the system is fairly simple to use.  However, this does not offer any real protection of the business name and it is obviously critical that you read all the information provided by ASIC during the business name registration process, which does include a serious of ‘check boxes’ – one of which is to draw attention to the business owner needing to ensure the proposed business name is unlikely to infringe the trademark rights of others.

Choose the Trademark Professionals

When embarking on a new business venture it’s easy to get swamped in the daily details of keeping things running.  That’s why it is so important that you take care of protecting your intellectual property from the very start.  The team at Mark My Words has been helping businesses of all sizes register their trademarks successfully for years, and we have the experience and expertise to be able to help you.  Contact us today to see how we can help with the registration and protection of your trademarks.

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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