Whether you are yet to launch your business, still building your brand or are a well-established operation, it is crucial to understand the distinctions between trade marks, business names and domain names. They each have an important part to play in setting up and operating an effective business. However, it is imperative to ensure protection of your brand as a trade mark, given that this sits at the heart of safeguarding your business from consumer confusion between entities and any harm to your business’ reputation. Trade mark protection is particularly important for ensuring long-term success in brand security.
Trade Marks
A trade mark is a sign used to distinguish your business’ goods and services from those of other traders. It is often referred to as “a badge of origin”. What constitutes a trade mark has significantly expanded over time and now includes any letter, word, name, signature, numeral, device, brand, heading, label, ticket, aspect of packaging, shape, colour, sound, scent or any combination thereof.
Although it is possible to use an unregistered trade mark in Australia, it is usually far more simple to enforce or defend trade mark rights with registration of your business’ trade mark(s). Importantly, a trade mark registration provides your business with:
- exclusive rights to use and authorise the use of the trade mark throughout Australia;
- a strong and simplified ground of enforcement of rights – a trade mark infringement action seeks to prevent others from using or continuing to use the same or a sufficiently similar trade mark in relation to the same, similar or closely related goods and services to those for which your trade mark is registered;
- a shield against a claim of trade mark infringement; and
- a proprietary asset, which can be dealt with as personal property.
All of the above advantages of trade mark registration aim to help safeguard your business’ brand(s) and reputation in the marketplace by preventing consumer confusion.
Business Names
A business name is registered through the Australian Securities and Investments Commission (ASIC). This name may or may not be the same as your entity name. A business name is the name that consumers will refer to your business by. This kind of registration is completed, generally speaking, to meet regulatory requirements.
Domain Names
A domain name provides an online address for your business. In the 21st century, it is of great importance to have an appropriate online presence and to secure domain names for your brand name(s). As outlined in my recent article, there are specific eligibility and allocation criteria that any business must satisfy when licensing a domain name in the .au domain space. These criteria must continue to be satisfied throughout the licence period and upon renewal of the domain name licence.
Importance of Trade Mark Registration
Registering a business name and/or licensing a domain name, in and of themselves, do not provide you with any:
- exclusive intellectual property rights in your brand(s);
- protection from a claim of breach of a third party’s trade mark rights; or
- protection from a third party using and/or registering a business or domain name that is very similar to yours.
While business and domain names are essential for establishing and growing your business, if you wish to protect your business’ brand(s) and prevent others from using a similar name in relation to the same, similar or closely related goods and services to yours, it is vital to seek registration of your business’ trade mark(s). This will assist in avoiding confusion in the marketplace and preventing dilution of the value of your brand(s). Trade mark registration ensures your brand remains as secure and exclusive as can be, adding value to your business by building a recognisable brand that consumers can place their trust in.
If you are seeking assistance with trade mark registration, please reach out to one of our trade marks team on 07 3369 2226 and our attorneys will be happy to discuss your IP protection options.
