When setting up a business, protecting its brand should be at the forefront of strategic planning. Giving brand protection due consideration, as early as possible, allows a business to start working on securing market position, building reputation and importantly, circumventing risks associated with potential brand infringement. This can be infringement of your own brand, but also unwitting infringement of another business’s brand if due diligence isn’t undertaken when setting up a business.
Risks associated with neglecting brand protection include:
- Infringement/copying of your brand by other businesses
- Dilution of your brand
- Harm to your reputation if others use your brand without permission
- Loss of customer loyalty and consumer confidence in your brand
- Involvement in costly legal disputes
All of these risks can result in disruption and financial loss to a business.
The Role of Trade Marks
The trade mark is an important tool which identifies a company’s brand identity and acts as a badge of origin for goods or services.
The trade mark can be the business name, a distinctive logo, a slogan or even a shape or colour, which distinguishes the goods and services of one trader from those of another.
Many brand owners misunderstand the function of a trade mark and choose a word or phrase that is generically descriptive of the goods or services that they trade in, rather than a distinctive name that is memorable, readily communicated and which can be wholly associated with their business or their product offering.
The main purpose of a trade mark is to prevent consumer confusion and ensure that consumers can reliably identify and connect with a specific brand. By associating quality, reputation, and distinctiveness with a trade mark, a business can build trust with their consumers.
Registered Trade Marks
Trade marks that have been registered in Australia carry strong, enforceable rights. Exclusive rights to the trade mark are granted to the trade mark owner, after an application and examination process with the Australian Trade Marks Office. The resulting registration provides the owner with enforceable rights against infringers, as the owner will have a legal basis for exclusive rights to use that mark.
Further, registered trade marks can serve as valuable business assets which can be sold, licensed and/or leveraged for financial gain.
Unregistered Trade Marks
While it is not compulsory to register your trade mark in Australia, and unregistered trade marks do offer some level of protection to the trade mark owner, the legal remedies available may in cases of infringement be limited. The owner can rely on Australian Consumer Law and common law rights (stemming from the trade mark’s reputation and use in commerce), however enforcement of these rights can be expensive and challenging. This is because the burden of proof of these rights lies with the trade mark owner.
It can be difficult to prove ownership of an unregistered mark and that it has garnered a sufficient enough reputation in the market to justify carrying out these common law actions. A trade mark registration makes this process much more straightforward, which can save both time and legal costs.
Additionally, unregistered marks are often limited to the specific regions where they carry a reputation as a signifier of a brand, as opposed to registered trade marks which apply nationally.
Your domain name may be another consideration – for information on domain names and business names, we have also written a post that might be helpful: What’s in a Name: Trade Marks vs Business Names vs Domain Names – M.B.I.P.
Register your trade mark!
Overall, a registered trade mark provides an enforceable right which is crucial for safeguarding the reputation and value of a business and is more easily enforced against infringers in any part of Australia. It is therefore highly recommended that businesses trading in Australia strongly consider obtaining registration for their trade marks. We’ve worked with many businesses and brand owners in this regard, here are just a few: Our Clients – Who We Have Worked With – MBIP.
Contact our Trade Marks Attorneys at MBIP to discuss your brand protection strategy today.
Image by freepik: Trademark on laptop screen | Free Photo
