When you’re in business you should be aiming to try and minimise as many risks to your livelihood as possible, and registering and protecting your trademark should be one of the first actions you take to help achieve this. If you decide that you don’t want to register your trademark, or will get around to it ‘later’, it’s important that you understand the possible ramifications of not having this level of protection for your intellectual property.
Registering your business name, names of products and logos as trademarks means that you will have control over what you can use and represent in the marketplace, as well as control who else can/cannot use your names and logos in the marketplace. You work hard to make a name for yourself and build assets – it only makes sense that you do everything in your power to safeguard that and give yourself access to legal protection in the event that someone does infringe on your rights.
Considering the complexity of trademark law and the process for determining the type of trademark you might need, we recommend that you always seek independent professional advice before trying to register your trademark. This will help to ensure that your application will be successful, and that you are fully covered in terms of the assets that are important to you.
What Happens if I Don’t Trademark my Business Name?
As with most things in business, a lot of what you must do as an owner is risk mitigation. When it comes to trademarks, you want to know that you have as much control over your business as possible. You also don’t want to be infringing on someone else’s rights if you can help it, as this can lead to protracted and costly disputes.
There are three main reasons you should register your trademark as soon as you can:
- Firstly, trademark registration provides the trademark owner the right to use that registered trademark. Without registering your brands, names and logos as trademarks you do not necessarily have the right to use them.
- Secondly, which follows from above, is that without trademark registration then through use and promotion of your names and logos you might be inadvertently infringing somebody else’s registered trademark. Use of another person’s trademark without authorisation (or something confusingly similar to that persons’ registered trademark) could be considered unlawful conduct. This means that it can potentially lead into a situation where the trademark owner demands that you cease use of your name, logo or other relevant asset, and requiring that you change that name or logo. If you don’t have a solid defence to that allegation, you might end up having to do this, which may affect your business substantially. When you think about the amount of money and the time you may have invested in your brand – including products, signage, vehicle signage, uniforms, an online-presence, marketing, radio, television – it becomes clear that having to start over could be disastrous, not to mention hugely expensive.
- Thirdly, without a registered trademark, if somebody else starts using a similar name to yours in your industry, you have very little power (if any) to stop them. Imagine a scenario where there is a competing business in a neighbouring suburb using a similar name to your business. It’s likely there will be considerable confusion in the marketplace between the two businesses, but you may not be able to prevent it from occurring. Options to prevent the use by other businesses without the registered trademark in place are often limited, very difficult to actually prove and have successfully heard in court, whereas when you have a trademark, it becomes a lot easier to enforce those rights and stop that confusion.
Under common law and certain other legislation, there are some exceptions to the power that an unregistered trademark can have. For example, if a person has used a trademark to a degree (without registration) where there is significant reputational value attached to it, this may give options to stop others use of the same name as it could be seen as an attempt to ‘pass off’ as that business, or if the use by someone else may mislead or deceive consumers into believing they are affiliated with the unregistered trademark user action may be available. Relying on this, however, is not recommended, and having a registered trademark will be the best way to give you the control you need over your intellectual property.
I Have a Small Business. Will Not Having a Registered Trademark Impact Me More?
There are several reasons why small businesses may be impacted more by not registering their trademark than larger businesses. Larger, more established businesses will more likely have the resources – both in terms of money and access to professional advice – to be able to either register a trademark in the first place, or involve themselves in the defending or bringing of any sort of dispute action or settlement negotiations.
Many smaller, start-up type companies might also feel that a trademark is something they can take care of later down the track, when they’ve become more established. This can come back to bite them, however, after investing heavily in their brand, only to find someone has beaten them to the punch or is using a similar name for their business or product.
To avoid any lengthy, drawn out and potentially costly actions, when small businesses ask us for advice about their intellectual property, we always recommend that they go through the process of registering their trademarks as soon as they can. You may not feel it is important at this point, or baulk at paying out the fees, however, when you consider the stress and potential costs involved in potential trademark dispute in the future. The process does not have to be complicated and costly and if set up correctly this will result in solid brand protection, nationwide for 10 years. Through our office for example, the entire registration costs from $656.70 from start to finish including all government fees and professional fees. That’s about $65 a year per year that the trademark is registered for the peace of mind it offers.
Most small business owners should be able to register their own business names with the Australian Securities and Investment Commission (ASIC) – as the system is designed to be fairly straight forward. This does not offer any real protection of the name and it is obviously critical that you read all the information provided by ASIC during the business name registration process, which does include a serious of ‘check boxes’ – one of which is to draw attention to the business owner needing to ensure the proposed business name is unlikely to infringe the trademark rights of others.
Use the Trademark Professionals
When you’re first starting out or when your business is starting to take flight, it’s easy to get lost in the day to day minutiae of just keeping it running. When it comes to securing your business’s future, it’s important however to take care of issues such as protecting your intellectual property as soon as you think of it.
The team at Quick Off the Mark has been helping businesses of all sizes register their trademarks successfully for years, and we have the experience and expertise to be able to help you. Contact us today to talk about registering your trademark today.
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.