What is a Trade Mark?

1) What is a Trade Mark?

A trade mark is a “badge of origin” for your brand. It’s whatever you use to distinguish your goods and services from your competitors.

For most Australian businesses, these items are generally trade marked:

  • the business name
  • logo
  • tag-line
  • product names
  • programs or services you want to deliver
  • derivative product logos
  • hashtags
  • favicons
  • even a jingle is possible.

Have a think of all the items that your business uses as a stamp. If someone copied it, or produced something too similar or too close for comfort and started confusing the market – would you care?

If so, there’s your answer.

A combination of globalisation, the Internet, increasing knowledge around the trade marking space as well as business’ collective willingness to protect their brands and enforce their legal rights, has meant that the importance of securing trade marks has dramatically increased.

Smart business owners realise the importance of trade marking. Some investors won’t even invest in a business without them either secured, or discounting their investment if they aren’t secured. It’s one of their “tick-boxes” in their due diligence checklist.

A bigger focus now is being placed on a business’ intellectual property protection strategy – and that includes securing all the available trade marks to make sure they are protected.

With IP now becoming so valuable in a business, it’s now one of the first things that gets done by the savvy business owner.

Some businesses don’t even go to market with a single new trade mark before at least having it on the register first.

That’s what the best businesses do that successfully avoid anyone trying to register underneath them – being first to register so they don’t get an objection by IP Australia to have to overcome.

2) Why Do You Need a Registered Trade Mark?

Here it is…

If you don’t have a registered trade mark, you can’t sue for trade mark infringement under the Trade Marks Act. It’s so vital and people don’t realise that it’s harder to prove misleading and deceptive conduct under the Australian Consumer Law (ACL) or the tort of passing off.

Registered Trade Mark Infringement under the Trade Marks Act is so much more straightforward, less expensive and usually a higher chance of success. It’s very scary having to face opposition against someone who is pursuing a registered trade mark as opposed to it being unregistered.

A registered trade mark will also provide you with:

  • Improved marketing strategies by distinguishing your brand and business from others
  • Increased exposure to the general public
  • Protection for both your business and your clients
  • Exclusive rights to use, sell and license your mark
  • It prevents consumers being confused as to who is the ultimate owner of the mark.

You can also use a registered trade mark as a shield or a sword.

A shield to stop others from registering the same or similar mark underneath you on the IP Australia register. i.e. first come, first serve. It’s also a sword because you can rely on to stop others from infringing your IP and misleading the market, confusing potential customers or even taking profit away from your business.

3) When is the Right Time to Register a Trade Mark?

If you’ve been in business for a while, NOW is the right time to finally register your trade mark.

The chance of successfully obtaining a trade mark generally increases over time with extensive and prolonged evidence of use in the market.

However, sometimes it can be too late when a business owner finally decides to register a trade mark, as they may find out that another business has registered this particular trade mark before them.

> You can read our trade mark registration process guide here, to find out more about the registration process and how long it takes.

> You can also read about the cost of registering a trade mark here.

4) Understanding Trade Marks in Today’s Environment

Risk management – a registered trade mark is an essential part of any business’ IP strategy because it’s so dangerous to a business if it doesn’t have one.

Potential investment – any investors or potential purchasers for a business will look very quickly to make sure that the business has registered all its relevant trade marks. If it hasn’t, they may be asking questions as to why not and be very wary.

Increasing value of IP generally – trade marks are becoming more and more valuable as businesses invest in technology and new ways of doing things, new trade marks to protect, new designs, new patentable inventions, technical know-how, automation, inventive steps, processes and secrets worth protecting.

The Internet – trade marking is the driving force behind most of the change and for some businesses e.g. AirBnB, Facebook, Uber, Nike, etc – almost their entire balance sheet is IP.

Increased competition – even medium and smaller businesses are investing heavily in IP as they see this is the new currency of the digital age. It’s what can make a smaller business compete with larger ones and even outgrow them rapidly, if that IP is protected.

Scarcity – it’s becoming really important in this day and age where we’ve not only got a scarcity of names available but also more businesses doing more global business and protecting their IP in international markets as the knowledge in this area grows more and more.

Protection of the business’ legal rights – having registered trade marks in Australia allows you to prevent others from infringing your intellectual property rights. E.g. stop someone else from confusing the market as to who is the rightful owner of that mark.It’s easier to stop someone from using your trade mark if your trade mark is registered.

There You Have it

Registering your trade mark is an incredibly important process for businesses looking to plan for the future. Even if you are just starting out and are looking at a name or tag-line, we can help you to conduct the right trade mark searches to make sure your trade mark is capable of registration. We’ll make sure that it is all clear on ASIC, ABR and the ATMOSS trade mark register and go from there.

> Find out more about conducting a free trade mark search here.

Contact us today and we’ll help you get started on trade marking your business and protect your most valuable asset. You can phone us below or email us here.