Could you be infringing another business’s trademark?
7 things all start up and small business owners need to know about infringing another business’s trademark
There’s a lot to think about when you’re a start up or small business owner.
But thinking about infringing another business’s trademark probably won’t be on your ‘to-do’ list.
However, perhaps it should be!
Your focus is 100% on:
- marketing and selling your products or services,
- paying bills, and
- driving revenue streams.
And with any time and money you’ve got spare, you develop and promote your business brand.
Have you thought about what would happen if you discovered that another business had already registered a trademark for a similar business name or brand in your industry?
You could be infringing their intellectual property and dealing with this trademark infringement can be costly and involve a lot of time and energy.
Here are 7 ways you can avoid infringing another business’s trademark, or deal with any trademark infringement that might arise.
1 Register your trademark as soon as possible
Your trademark is a valuable business asset and is as important to your business development and growth as your other business assets are.
Being proactive and taking steps to protect it will add to the value of your business.
It’s unfortunate that many start-ups and small business owners don’t understand the importance of trademark protection until it’s too late.
Perhaps the most important step in protecting your trademark is to register it as soon as possible. If you take a long time to register your trademark or forget, your competitors could be able to register the same or similar brands before you.
You’ll be in a much stronger legal position to stop others from infringing your brand when you’ve got a registered trademark. Plus, once you have a registered trademark another trademark owner cannot take trademark infringement action against you for using the trademark you have registered.
Kick start the process today with our online trademark application.
2 Conduct a search for trademarks
Before you invest time and energy into building your business or new products, it’s good business practice to conduct a trademark search.
This simple search will uncover any possible infringements on other business’s trademarks.
If you take a few seconds to complete the Quick Off the Mark® form here, we’ll conduct an obligation free Australian trademark search and email you free:
- Search results,
- Professional opinion, and
- Estimate of costs
3 Identify what you business can register as a trademark
If you’re dealing with a potential business trademark infringement, you must know what your business owns and what it can register as a trademark.
Identifying any distinctive business names, company names, slogans and brand names and making sure they’re registered, ensures you’ve got ownership.
Another business may claim that you’re infringing on their brand or business name. But if you can prove your ownership of this right, you’ll likely be in the clear.
4 Before you use source materials – get permission
It’s simple and easy to download an image or photo online and use it for your business marketing.
But using this material without getting permission from the person who created the material (often referred to as ‘clearance’) means you could be infringing copyright.
Using any materials that include a brand name, logo or mark without permission from the owner means you’re possibly infringing trademarks.
5 How to deal with an alleged trademark infringement
You’ll find out if another business believes you’ve infringed their trademark usually via a letter of demand.
This can be alarming – here are some simple steps you can take.
If you’ve been issued with a letter of demand you need to understand whether you’re infringing on another businesses trademark, what you should do and the cost and likely outcomes of your actions.
It’s important to get this advice before you respond to the letter of demand.
We often speak with clients who assumed that they were infringing based on the letter received (and, therefore agreed to stop using their business names or brands) only to later realise there may have been available defences to the claims.
Quick Off the Mark® offers business trademark law infringement advice here.
Subject to advice that suggests you may in fact be infringing the rights of another party, ceasing the alleged infringement will usually bring the matter to an end quickly.
Agreeing to stop use doesn’t necessarily mean an admission of guilt.
Each case is of course different but generally, showing you’re making genuine efforts to resolve any concerns or disputes with another party (and, if required, agreeing to cease use of any infringing brand) will usually stop legal proceedings from being instigated against you.
6 Avoid using intentionally misleading trademarks and names
When you’re starting your business, make sure you use names and descriptions that don’t confuse customers.
For example, if you’re starting an online active wear business avoid using slogans or logos that allude to major sporting brands like “just go for it” (Nike is “just do it”) or “nothing is impossible” (Adidas is “Impossible is nothing”)
Adding descriptive words to your trademark to make it ‘sound different’ or creating a logo that could be mistaken for a competitor’s won’t make if sufficiently differently.
Generally, the question to ask yourself to help determine if your proposed brand may infringe is:
“Is it likely that consumers are going to confuse my proposed brand with that of an existing registered trademark?”
If the answer is yes, confusion is likely, consider alternative names or seek advice.
7 How to respond to an empty threat of trademark infringement
Some cases of business trademark infringement don’t come to anything because they didn’t exist or they can’t be proved.
Under the Trade Marks Act 1995 there are options to seek relief in the event another person makes groundless threats about legal action concerning trademark infringement.
But even if the allegation is false, your business will face disruption and you may suffer some financial loss through incurring costs in having to deal with such claims.
Talking with an experienced trademark lawyer can help you analyse any potential risks.
They can also help you decide on the best strategy to avoid expensive and lengthy legal proceedings if you were found to be infringing another’s trademark.
The surest way to ensure that you are:
(a) not at risk of infringing another person’s registered trademark; and
(b) you are in a position to stop others in your industry if they commence use of the same/similar brands to you is to ensure you register all of your trademarks as soon as is viable for your business.
Quick off the Mark offers cost effective trademark advice for start-ups and small businesses.
The advice provided in this blog is general advice only. It has been prepared without taking into account your business objectives, legal situation or needs. Before acting on this advice you should consider the appropriateness of the advice, having regard to your own objectives, legal situation and needs.
Quick Off the Mark is a division of Mark My Words Trademark Services Pty Ltd (MMW). MMW was founded in 2011 and is headed by Jacqui Pryor, a registered trade marks attorney with more than 16 years experience.
In 2015 MMW acquired Quick Off the Mark®, which is a fast and affordable Australian trademark registration service. Quick Off the Mark® offers fixed fees that are affordable to help Australian businesses register their trademarks.