Example of the need for a trademark

A business who trades under a name and logo but does not register that as a trade mark may be required to stop using that name and log if another registers it.

Trademarking not only protects your intellectual property but it prevents you from being sued for the use of a similar trade mark registered by another business.

What is a trade mark?

A trade mark is a:

name,             word,               phrase,              logo,              symbol or image;
sound,            scent,               3D shape,          colour,

or a combination of these packaging the public identity of your product or service; it is used to distinguish your goods or services from other traders.

Why should I register a trade mark?

Your business name, company name or domain name does not protect your business, company or domain name.

Without getting your own trade mark registered, another person or business could apply and be granted registration of your name at any time without you even knowing.  They could then ask you to stop trading under your current business name.

With a registered trade mark you will:

  • own your brand name, perhaps indefinitely.
  • have monopoly use of the trade mark in Australia, or the country it is registered in.
  • ensure no one can trade under the same or similar name for related goods and services.
  • provide ownership and protection for your domain names.
  • provide an asset which can be sold, inherited, transferred or licenced.
  • increase the value of your business.
  • stop others from using the trade mark.
  • avoid being sued for infringing the Trade Marks Act or ‘passing off’.

Passing off

The principle of ‘passing off’ is that no person is entitled to represent that his or her goods or services as those of another.

Another party’s use of your business name could confuse or deceive your customers into thinking the competitor is you or somehow connected to your business.  If that has the potential for damage to your business then you may have an action of ‘passing off’ against that other party.

However, it is also open for another party to make this claim against you.  Much will depend on the circumstances, for example, did the competitor’s business use a similar name before you began using that name.

Again, registration of a trademark is your best solution.

Our Recommendation

We recommend that you make application to trademark your business name.  The cost of trademarking is not as expensive as you might think.

Call us if wish to discuss trade marking. We can give you an obligation free quote.