The hidden costs of not knowing about trademark, brand and intellectual property registrations
What all small business owners and start-ups in Australia must know.
When you started your business, you invested time, effort and money on:
- website design,
- finance, and
Anything in the ‘legal area’ like trademark, brand and intellectual property protection was probably placed further down your priority list.
That’s pretty usual for start up and small business owners but there are hidden costs of not knowing about trademark, brand and intellectual property registrations.
Hidden cost of not knowing about trademark law
Applying for registration of your trademark may seem like an arduous task – filled with paperwork and boring legal jargon.
But it’s surprisingly simple!
By taking the time to register your trademark you gain a lot of advantages over non-registered trademarks that include:
- An intention to use it is implied because you’ve registered it – even if you don’t end up using the trademark,
- Not needing to prove existence of reputation with your registered trademark to stop others are using it, and
- Knowing as a result of the application process whether your proposed use of the mark is likely to infringe on another’s registered trademark.
If you don’t take the time to register your trademark, your competitors can.
When you have your trademark registered it gives you the right to stop your competitors if they were to start using your brand.
The protection of registering a trademark goes beyond a brand and extends to smells, words, shapes, colours, sounds and logos.
When your business has a trademark registered you can take legal action against anyone who infringes it.
Protecting your business with a trademark registration also ensures your business is protected and retains its value.
1 Your business value’s protected when you register your trademark because:
When you register a trademark you get exclusive rights to use, license and sell your brand in Australia for the goods or services you’ve claimed. Which means while you use it, you can also charge a license fee and authorise others to use it.
And because a trademark is an asset – it can be sold in the future.
2 Your business is secure when you register your trademark because:
When you register a trademark it protects your business from any unauthorised use that could harm your business, reputation or brand.
This means you’ve got the right to stop others who start using your trademark (or something confusingly similar) for the same or similar goods/services to those you’ve claimed under your trademark.
3 And when you register your trademark you avoid disruption to your business:
If your business brand isn’t registered as a trademark, you could be prevented from operating it if another person felt your brand infringed their trademark rights.
- What impact could occur to your business if you needed to change its name?
- What damage would be caused if you needed to change the name of a high selling product?
- What would your financials and reputation look like?
Hidden cost of not knowing about brand protection
Did you know that your unprotected brand could be a liability?
If you’re using a logo, brand or tagline that’s unregistered, you may only have common law ownership of it. And this means you’ve only got limited rights.
Common law rights can be difficult to enforce.
Common law rights sound okay but are limited. If someone infringes this, your case is unlikely to be as strong as if your brand is registered as a trademark.
Common law rights are more likely to require you demonstrate a substantial reputation in the brand, whereas trademark rights can be enforced without a significant reputation attached to the brand.
Common law rights are usually dealt with as matters of ‘passing off’ or ‘misleading and deceptive’ conduct claims. Passing Off requires three main elements to be proven:
- You have a substantial reputation in the particular item (e.g. Brand name)
- Someone else is making a misrepresentation to the public to be affiliated with you, your business, your brand or your products by using the same or very similar brand name; and
- That misrepresentation is causing damage to your reputation and goodwill in the brand name
Smaller businesses, and certainly new businesses, are not likely to have the level of reputation required to successfully prosecute a passing off claim against another person using a similar brand name.
Hidden cost of not knowing about intellectual property
It’s fair to say that most business owners aren’t aware of the value and impact intellectual property has on their business.
Intellectual property denotes any creation from the mind or intellect that can be legally owned.
Every business will have some type of intellectual property they’ll need to protect. Intellectual property laws can protect inventions, innovations, designs, brands and creations that give you the edge over your competition.
By protecting your intellectual property when you start your business, you’ll be protecting yourself from potential intellectual property disputes in later years.
Note that some types of intellectual property must be ‘new’ when filing your applications so it is very important to seek advice around their protection before disclosing any invention or innovation.
So how do you stop competitors from copying your most valuable asset?
In most cases you must formally register your intellectual property.
Quick Off the Mark® offers a cost effective service for business owners for the protection of their brands, names, logos and the like as registered trademarks. Head here to find out more.
And if your business outsources work to independent contractors like website developers, graphic designers or copywriters, you’ll need to make sure they assign their intellectual property ownership rights to you.
Website design, graphic design and written copy are usually – automatically – protected as Copyright.
Ownership usually falls to the person that created the work, even if they did so for you. Most copywriters, designers, artists and other sub-contractors will include clauses around this in their terms and conditions or in their invoices.
Often a graphic designer, for example, will state that they assign ownership of all copyright in the brand logos they are creating for you over to your ownership so long as you pay their fees in full.
Some, however, will not include this as an automatic term. If your agreements with independent contractors are silent about intellectual property and copyright ownership or transfer, this should be considered and perhaps advice will be needed before you agree to the terms and conditions – otherwise, you might find that the logo you paid to be created for your business, product or brand never really belongs to you.
You don’t need to push the ‘legal areas’ of trademark, brand and intellectual property protections down your priority list anymore.
Quick Off the Mark’s® cost effective advice and service will help you protect the value of your business now and in the future.
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.