Trademarking a Name
- Are you looking for the best information on trademarking a name?
- Australian Trademark law grants registered trademark holders the exclusive rights to use and protect their intellectual property.
- Trademarking your business name is an important step in securing your business name and associated equity: your business is built upon your reputation and the more successful you become, the more valuable your reputation becomes.
- Trademarking a name protects you from infringement, from other traders registering your name as their mark, and from overseas competitors from importing goods under a conflicting mark.
- Bear in mind that registering your name with ASIC (Australian Securities and Investments Commission) does not grant you automatic trademark protection. Trademark registration is a separate, more rigorous procedure. You are only protected by your registration if you can show an official Certificate of Registration.
Benefits of Trademarking a Name
There are a number of benefits to trademarking a name, including:
The Right to Exclusive Use
Trademark registration grants you with the exclusive right to use your mark, on a national scale, in conjunction with the goods and services nominated. Before you apply for registration, you should conduct a trademark search to ensure that your business name does not conflict with other previous registrations. Your business name cannot be identical or similar to another registered name. A trademark search will determine whether your business name is suitable for registration: only unique and distinguishable names can be registered.
Trademarking a name, in turn, prevents other applicants from registering identical or confusingly similar names. As the trademark owner, you can prevent others from attempting to register a similar name, or from using that name, unregistered or registered, within the marketplace.
The Right to Protection
Trademarking a name makes it simple for you to defend and protect your mark against other traders. Registration grants you the right to take legal action against infringing parties. Infringement occurs most commonly when other unregistered traders start using a name, logo, slogan, or other mark that is confusingly similar to your own in conjunction with the same or related goods and services.
Registration with ASIC prevents other traders within your region from using an identical business name, but it does not prevent traders from using similar names. This kind of registration does not grant you the right to exclusive ownership, but you do have some rights under common law: these rights are difficult and expensive to enforce.
Increase Professionalism, Business Image, and Goodwill
Once you have registered your business as a name, you can begin to use the ® symbol to advertise your rights and your intention to protect your mark. This symbol displays to other traders that you are in a strong position to defend your business against infringement.
The ® symbol often signifies dependability, professionalism, and a good reputation for service amongst consumers. Consumers understand that you have taken steps to protect your goodwill and reputation from lesser competitors or infringers.
Bear in mind that the ® symbol can only be used once you are formally registered. It is a punishable offence to use this symbol without the proper registration. You can, in place of the ® symbol, use ™ to signify your intent to register your mark.
Increase Business Value and Lifespan
A registered trademark is a valuable asset. Your registered mark and associated reputation can see your business expand, as well as extend the lifespan of your business due to customer loyalty. Trademarking a name has the potential to ensure the longevity of your business, which in turn increases the consumer trust in your business, in a kind of vicious cycle.
Increase Business Income
Once you are a registered trademark owner you have the right to authorise other traders to use your mark in conjunction with specific goods and services. As a licenser, you can also control the use of your mark by others. You can also charge a licensing fee, commonly known as a royalty, for other licensees to use your trademark.
Trademark registration allows you to firmly control the way your mark is used by others in order to ensure consistent quality of business and brand while you generate further income for your business. The length of your licenses can last for as long as the trademark is registered. In Australia, initial registration lasts for 10 years, and can be renewed indefinitely with the payment of timely fees. Your additional income could continue to grow until you retire or sell your business.
Trademark registration, unlike business name registration, is not a legal requirement. Nor is it necessary to trademark your business name in order to gain some rights to the use of it. You can protect your trademark under common law: you can enforce your rights under the Competition and Consumer Act 2012 and under similar state-based fair trading legislation.
It is difficult – and expensive – to enforce your protection without trademark registration.
You can still use your business name as a trademark without registering it. You can use the ™ symbol to show other traders that you intend to use your name as a trademark and to defend it against infringement. The ™ symbol does not, however, grant you the rights of a registered owner.
You can only use the ® symbol in conjunction with a registered trademark. This symbol states that you are a registered trademark holder and that you hold the exclusive rights to use and protect your business name. Without a Certificate of Registration, however, it is an offence to use the ® symbol. There are no penalties for using the ™ symbol, registered or unregistered.
Trademarking a name is the only failsafe way to protect your business and associated goodwill from infringement. If you are considering registering your business name as a trademark, consult a trademark professional for further advice and information.