How Do Registered Trade Marks Protect A Business?
Trade mark registration should form a part of your strategy for providing the best protection for your business. Many business owners erroneously believe that registering their business name is sufficient; that this protects the name. But registration of a business name and registration of a business name as a trade mark are two very different things.
The bottom-line (which can have a profound effect on your bottom-line) is that registering your business or company name with ASIC doesn't provide you with any legally enforceable intellectual property rights for that name. Further, registering your business or company name with ASIC does not actually give you the right to use the name – doing so may inadvertently infringe a registered trade mark. Registering a trade mark is the easiest and best way of comprehensively protecting your business, brand name or other trade mark asset.
Of course, not every business will choose to register their name as a trade mark. It all depends on the organisation's trading ambitions, its growth strategy and the environment in which it operates.
For example, a niche local business which services a defined geographical area and which has no intention of expanding its sphere of influence may decide it does not need to seek trade mark registration. An example could be a local coffee shop or hair salon. However, it is perhaps more important that these local or smaller businesses at least conduct trade mark searches ahead of promoting their names to ensure the use is unlikely to infringe existing trade mark rights.
What is a trade mark exactly?
A trade mark is a badge of origin that distinguishes one entity's goods and/or services from those of other traders operating in the same industry. Examples of these unique identifiers are a name, a phrase, a slogan, a tagline, a logo, a graphic, an image, item of packaging, colour, a sound, a smell – and these can be registered as a single element or as combination of a number of elements.
Trade mark registration is also not a one-size-fits-all scenario which gives you blanket rights to your brand.
When someone registers a trade mark, it has to be registered in a particular category of goods and/or services and once the application has been approved, registration is limited to the nominated goods or services with in the class/classes. This allows clarity in terms of where, how and by whom the distinguishing feature/s can be used.
Why bother with trade mark registration?
A registered trade mark is a tradeable asset and can substantially enhance the value of a business. As the owner of a registered trade mark, you have legally enforceable rights to the exclusive use of that mark. You also have the rights license and sell your registered trade mark and take steps if someone else uses the same or deceptively similar trade mark in relation to the same or similar goods and services.
It essentially gives you a monopoly over the use of the mark for the goods and/or services for which it was registered. And importantly, registration means your trade mark is then included in a publicly searchable database so any new business entering your competitive space will be aware of your rights.
It can take years to build a strong brand, and without the legal protections afforded by registration, it is difficult – and often impossible – for a business to defend against unscrupulous operators trading on their success
Brand reputation is also at risk without the protections of a registered trade mark.
Copycats may bring inferior products to the market and customers may unwittingly find themselves with products or services that fall well below the expected standard and without any service back-up. This can erode a brand's reputation and may lead to a loss of revenue and a damaged reputation in the marketplace.
Being able to rely on a registered trade mark in these situations makes for a far easier case than trying to stop copycats based on unregistered 'use' of a trade mark in the marketplace.
A registered trade mark also protects against infringing other's rights
Registering a trade mark also protects a business against inadvertently infringing on another registered trade mark's rights. By registering your business or brand name, you can be sure that you aren't stepping on a competitor's toes. This will prevent any likelihood of trade mark infringement and will avoid any damaging costs down the line. Whilst trade mark registration does not defend against another's claims of misconduct under other laws, it is extremely difficult (and, sometimes impossible) for one trade mark owner to prevent another trade mark owner from using their registered mark.
A registered trade mark can increase in value significantly over time and ownership of these legal rights can become an important bargaining tool with potential buyers, investors, partners etc. The stronger the business's reputation and the greater the goodwill it represents, the higher the value of the trade mark will be.
A registered trade mark brings peace-of-mind to both the business owner and the customer. There's no confusion in the customer's mind as to the origin of the brand and the business owners knows their asset is protected by legally enforceable rights.
Registered Trade marks protect a business by:
Want to discover how a registered trade mark can protect your business?
The marketplace today is complex, competitive and often cutthroat and it makes good commercial sense to secure the best possible protection for your business assets. Your trade mark is a valuable, tradeable asset and trade mark registration is the best protection against infringement.
So, if you are looking for tailored advice with regards to registering a trade mark or simply want a better understanding of the world of trade marks, a good starting point would be a discussion with a qualified trade marks attorney.
Jacqui is a registered trade marks attorney and has owned her own business, Mark My Words Trademark Services since 2011.
After being introduced to the world of trade marks in one of her first jobs post high school, Jacqui discovered she had a deep passion and interest for all things to do with protecting brands and intellectual property. She completed her graduate certificate in Trade Mark Law and Practices as well as a Diploma in Business Management and holds a current registration with the Trans-Tasman IP Attorneys Board.
Her business provides professional, friendly and reliable advice and assistance on all types of complex trade mark registration, infringement and opposition matters in Australia as well as overseas. Jacqui started the business specifically to support SMEs which typically couldn't afford such a service and over the years, the company has grown in both size and reputation, with a client list that spans businesses of all sizes across a range of industries.
To keep up to date with the latest in the field of trade marks, follow MMW Trademark Services on Facebook at https://www.facebook.com/MMWTrademarks.