The name you’ve given your business branding is your own intellectual property (IP). This business branding name can be a business’ most precious asset. Therefore it is vital that this asset be protected on all fronts, especially when the business may be up for sale.
Intellectual property comes about as the result of original thinking and creativity. A lot of focus and hard work goes into creating a business branding with commercial value. Innovation in the form of devices, works of art, inventions, designs, logos, books, movies, songs, literature, business brandings and creative works of all types are examples of intellectual property. We commonly think of IP in terms of trademarks, copyrights, designs and patents.
The laws governing intellectual property are becoming more and more complex so it makes good business sense to consult with an experienced trademark professional if you have any concerns regarding your business branding or IP.
Important tips for protecting your business branding
Be diligent in selecting your business branding
Think long and hard when selecting a new business branding. It is vital that businesses undertake adequate due diligence before making a commitment to a new business branding, product or any new promotion. You must make sure that your prospective new product, business branding or promotion won’t infringe on the rights of another business’ intellectual property. You certainly do not want to risk your business by wasting time and money developing a business branding that could end up infringing on someone else’s IP or even be already owned by another business. Any trademark, domain or business name must be legally available for your use.
Your business and business branding name need to be registered
The name you’re doing business under as well as your key business branding names need to be registered with the government as your trademarks. You will be asked to pay the fees when you submit your application and the amount depends on how many classifications you register your trademarks under. Once the Australian government accepts your application, your trademarks will be advertised, giving third parties a chance to file paperwork opposing your application and specifying why. If no one opposes your application or if an opposition fails, your application will move forward. A certificate of registration will be ultimately issued in approximately a year. The initial registration will be for a period of 10 years and may be extended by a renewal process every 10 years thereafter.
Establish an IP strategy and policy with full documentation
It is critical that your intellectual property and branding are fully documented, updated on a regular basis and diligently overseen and managed. If you maintain confidential information as part of your business, this needs to be plainly defined. You must have a system in place to keep track of all your registered trademarks, business names etc., with their renewal deadlines. If you have employees or outside consultants designing or inventing new products for the company, the ownership of these designs and inventions must be plainly spelled out in all employment and/or consultant contracts at the outset.
A formal audit or review of your IP rights should be done
As your business grows and changes, your business branding(s) will evolve so your portfolio of intellectual properties must keep pace and the strategies affecting them will need to as well. Scheduling a formal audit or review on a regular basis should be implemented so that the registrations on your trademarks, business brandings and business names do not expire. During the review the classifications under which your trademarks and business branding names are registered under should be looked at again and updated if necessary. This means that searches need to be done on all trademarks and business branding names to discover any other businesses that may be trading on any of your names or something very similar.
Be attentive in guarding your IP
Be observant at all times with regard to your competitors’ advertising and marketing activities by regularly conducting Google and other searches on the Internet. If you find anything that seems to infringe on your rights, act immediately. Be diligent in managing your social media accounts and look out for anyone using your intellectual property without authorisation. Anything like this has the potential to damage and dilute the value you have worked so hard to build in your business branding. We can help with this, contact us today.
Handling trademark infringement issues
Every business must quickly deal with and aggressively respond to any and all assertions of trademark infringement. If this is delayed any relief you may be entitled to could be affected. You might be blamed for infringing on another business’s IP rights. You would probably receive a demand letter spelling out the alleged infringement. If this happens to you, it would make sense to seek advice from an experienced IP professional.
Cease all infringing activities
If at all possible, immediately cease any activity or conduct that you have been accused of that may be infringing on someone else’s IP, without admitting to any wrong doing, until you have received professional advice that states unequivocally that you have the right to resume your activities. Once you stop the alleged activity or conduct this removes the main reason for the (so-called) holder of the IP rights in question, to start legal action or demand an injunction. This also limits any further infringements, which might instigate additional legal claims for financial damages.
Get the advice of an experienced professional
Oftentimes a threat of infringement doesn’t hold up upon close examination. This may be due to the IP rights not existing in the first place, the rights could be held by someone else besides the one accusing you, or your supposed infringement cannot be proven.
Respond aggressively to all baseless threats
You could certainly be on the receiving end of an alleged infringement that could never result in a successful outcome by the one threatening you. An example would be that the threat could involve IP rights that are and always have been owned by you, which can be documented. These kinds of threats can disrupt business by, for example, production being stopped on certain items during the investigation. Financial losses may have been incurred as a result.
- An aggressive response must be made to whoever is making the threat and demand that they never repeat the threat and fully compensate you for any financial losses you have incurred as a result of their actions against you.
Follow these steps when dealing with trademark infringement issues:
- Conduct a thorough investigation and maintain copies of all enquiries.
- Immediately respond in writing to a demand letter. Speak with your trademark professional with all questions and concerns. Any demand letter that you send out should clearly describe the nature of your intellectual property, whether it’s a trademark, the infringement you are alleging, and what actions you demand they take to address their infringement. Be cautious about your wording, as it may be illegal to threaten any infringement proceedings.
- Undertake negotiations if possible to resolve and settle the dispute.
- Commence litigation proceedings if there is no other way to resolve the issue.
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.
Disclaimer – 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.