There is a lot to consider in the early stages of starting a business or advising a new business and it may be the case that intellectual property related issues can seem complex and be considered too abstract to take priority.
However, the intellectual property generated by the process of setting up and beginning to pursue a new business idea can be one of the business' biggest and most important assets. In order to be competitive against larger, more established rivals, a new business venture may be reliant on innovation as its point of difference.
One way for a business to protect its position of difference may be to register one or more trade marks to prevent dilution of its brand.
How can registering a trade mark protect a business' brand?
A trade mark is used to distinguished one business' goods and services from another trader's. A trade mark can be registered in relation to particular "signs" (such as logos, unique words or combinations of words, colour schemes and characters) that are intended to form part of the branding of a new business or venture. A trade mark can, in some instances, be registered in relation to a business' domain name, for example.
Registering a trade mark connected to a brand will give the owner proprietary rights in relation to the trade mark, including the exclusive right to use the registered trade mark throughout Australia. Once the trade mark is registered, others will be prevented from using identical (or substantially identical) marks where not authorised to do so by the registered owner.
Unlike some other forms of protection for intellectual property, a registered trade mark does not expire, as long as the owner continues to renew the registration (every ten years). Thus, trade mark registration can be an effective and low-maintenance component of any branding strategy.
If I already have a registered business name, do I need a registered trade mark?
A business name registration is required where a business is operating under a name other than its registered company name (registered with ASIC). The registration identifies the owners of the business. It is primarily a consumer protection mechanism.
A business name registration does not give the owners proprietary rights for the use of the trading name. A registered trade mark, however, does provide that protection.
Although there are statutory provisions preventing misleading and deceptive conduct (for example) that may be useful in enforcing a registered business name, this method of enforcement may prove to be a costly and time-consuming exercise when compared to enforcing a registered trade mark.
Developing a branding strategy that includes trade mark registration
Many small and new business owners will recognise the importance of a consumer's loyalty and emotional attachment to a particular brand in the success of any business. Registering a trade mark can be a crucial step in establishing and protecting a distinctive and reliable brand reputation.
In order to ensure registration is successful and effective, a business owner will need to obtain appropriate advice about important aspects of the process, including whether the proposed mark will be eligible for protection and whether there are any pre-existing conflicting registrations.
Being forced to re-brand or risking infringing another business' registered trade mark can be a costly and time-consuming exercise and may be critical to the success of a fledgling business. We suggest that business owners seek early advice about what intellectual property protection would be best for their particular situation as early as possible in the process of starting a new venture.
Cleardocs' Trade Mark Application product can provide a simple and cost-effective option for businesses and their advisers navigating the trade mark application process. The Cleardocs Trade Mark Application package also includes a preliminary review by Remarqueble Pty Ltd, who may recommend changes to the application in order to make it more likely to succeed when being reviewed by IP Australia.
You can register a trade mark using the Cleardocs Trade Mark Application product.
More information from Maddocks
For more information about securing, protecting and exploiting your brand or for information about how to assist your clients with these matters, contact Maddocks on (03) 9258 3555 and ask to speak to a member of the Maddocks IP Team.
More Cleardocs information on related topics
You can read earlier ClearLaw articles on a range of Intellectual Property related matters here.