So you’re considering launching a new range of products under a clever and exciting name you’ve come up with. The product itself has existed in the marketplace for a long time so you know a patent isn’t the way to go. You might have heard of trade marks and design registrations before but aren’t quite sure how to use them to protect yourself. So what do you do? Let’s take a look at the types of protection available and how you can use trade marks and designs together to build a strong brand and stop others from stealing your exciting new products and brand identity.
Main attributes of trade marks v registered designs
A trade mark is the application of a word, phrase, logo or other sign or indicia which acts as a badge of origin to indicate a connection between goods and services provided and those who supply those goods and services. Some trade marks can include colours, sounds, shapes, and scents.
A design registration relates to the unique visual appearance of a product defined by the shape, configuration, pattern and ornamentation and, in some instances, colour combination. For further information on the benefits of registering a design and to understand the application process behind design rights, read more here.
As with all forms of registrable intellectual property, trade marks and designs were created to serve a particular purpose in relation to the provision of goods and services to the public. That is, trade marks provide the aforementioned badge of origin and limit confusion amongst consumers while registered designs promote the development and improvement of the visual aesthetic of products to be more appealing to consumers.
A design registration therefore provides you with the exclusive right to make and use the design of your product, while a trade mark provides the exclusive right to the use of your brand and brand identifiers. If used effectively, designs and trade marks can be used together to both strengthen and protect your brand and the products that make your brand unique.
Many people focus on the use of patents and trade marks, often overlooking the power of design registrations due to their more limited scope of protection and shorter lifespan. However, the use of designs and trade marks together can be particularly powerful in enhancing and protecting your brand in a very cost effective way that is much less expensive than obtaining and managing a patent.
Combination of trade marks and registered designs
The combination of designs and trade marks is particularly effective in preventing your competitors from copying your unique brand elements. A trade mark registration stops competitors from using your trade mark (your badge of origin) in which all the goodwill you have built up with your customer base resides while a design registration prevents the unauthorised copying of unique visual appearance of your product or the packaging you provide it in, which may also be immediately recognisable to your customers. For example, if you have a uniquely shaped product (such as a child’s toy or new beverage container) that is also well known for a particular colour palette and name, the appearance of those products can be protected by a design registration while the specific colour palette and name can both be protected as trade marks. Your competitor then cannot release a copy of your toy or beverage container without infringing your design registration but also cannot simply create a variation of those products and use your name and/or defining colour palette without infringing your trade mark. This example can extend to many different, high-volume sale industries that may not be ideal candidates for patent protection in many instances, including pet foods and snacks including the unique appearance of the snack or packaging, food and beverage products including containers and packaging, clothing and cosmetics, amongst others.
Using designs and trade marks in combination can increase the strength of your brand and build a multi-pronged defence strategy against would-be copycats and competitors in a cost-effective way without needing to go down the more expensive patent route. A competitor hoping to take advantage of your hard work and innovation is unable to copy your products and cannot ride on the coattails of your hard-earned brand recognition and goodwill associated with the quality and reputation of your brand which ultimately protects your unique position in the market.
For advice on how best to protect your new brand and products, or questions about combining trade mark and design registration protection, contact us.