Have you just started a new business and want to make sure that your brand is not exploited? Or maybe you have been a business owner for quite some time and have just realised that you don’t have trade mark protection for your established brand, products and services. Look no further, we are here to explain everything related to trade marks and why they benefit your business.
What exactly is a trade mark?
A trade mark is an intellectual property right which is used to protect your brand in respect of the goods and services you provide. Your brand might be made up of any distinctive names, logos, phrases, numbers, smells, shapes, jingles, slogans, pictures or sounds you use to differentiate your business from other similar traders (“Marks“).
Having any of these Marks registered as trade marks:
- Will help protect your Marks from entities that may wish to benefit from your business’ reputation or infringe your Marks, such as industry competitors who provide similar goods or services and seek to use or register identical or similar Marks to yours for the purpose of misleading the public; and
- Adds value to your business as a Mark that is registered as a trade mark provides absolute rights to use, license and sell that Mark.
Many people have the idea that a business name registration provides the same level of protection as a trade mark registration. We are here to tell you that this is not the case. Unlike trade mark registrations, business name registrations do not grant holders exclusive rights to use that name.
Where do I start?
If you are in a position where you are unsure as to whether or not you should or can register your Mark as a trade mark, ask yourself the following:
- Am I eligible to own a trade mark? To be eligible, an owner must be a company, an individual, an incorporated association or in the case of multiple owners, more than one of these three.
- Am I trying to register a Mark already registered or a well-known or prohibited mark, sign, word or phrase?
- Have I undertaken the necessary searches of all relevant databases to ensure I am not copying another owner’s trade mark?
- Is my Mark distinctive enough to separate my goods and services from those offered by other traders?
- Have I thought about what class of goods and services my Mark will fall under?
- Do I feel comfortable knowing the details of my application, including addresses will be published on the IP Australia trade marks register if the trade mark application for my Mark is accepted?
What are classes and how do I choose them?
Classes are the categories of goods and services for which you may register your mark. IP Australia provides a picklist which can be used when determining what class or classes you should seek registration for your mark. We can assist you with this.
What about international trade marks?
Having a registered trade mark in Australia does not mean your Mark will be granted worldwide protection. Rather, you will need to apply for a trade mark registration in each country that you wish to have trade mark protection for that Mark. Having trade mark protection in the countries where your product or service is sold and performed is extremely beneficial, as it makes it very difficult for others to try and use your Mark or something similar in that country.
Some trade mark applications can be lodged via the Madrid International Trade Mark System and/or directly with the intellectual property office of that particular country. Given there are different benefits attached to these methods, it would be favourable to consider both options before filing a trade mark application in an international jurisdiction.
Who do I contact?
After reading the above, there are a few things to think about. However, if you wish to start the process of obtaining trade mark protection or you simply need some guidance with anything to do with trade marks, please contact us. Our intellectual property team is skilled in this area and are here to assist you with any queries or concerns you may have.
Please contact Sarah Cappello, Georgette Georges or Simone Cacopardo or us to see how we can help.
