Australia: Branding for business: Six reasons why trade mark registration matters

The branding associated with your business is fundamental to establishing commercial goodwill and building your business reputation within your target market.

There are so many things to think about at the early stage of business, and it can be overwhelming and difficult to prioritise when budget is limited.

However, trade marks are a relatively inexpensive and speedy way of securing protection for your brand, ensuring the investment in your brand is not scuttled.

Trade mark registration throughout Australia can be achieved through Australia's intellectual property framework. We outline six reasons why securing trade mark protection is important, and why it is critical to seek advice about how to do this at an early stage.

  1. Competitors may jump in and bump you out

Problems enforcing your rights, or tackling infringement, are often a result of registration not being achieved early enough. A lack of trade mark protection will mean more time and expense down the track, either when you want to enforce the rights in your brand, or indeed if you need to defend the rights in your brand.

Not pursuing registration also means that a competitor may seek to secure registration of the same or similar name to yours, ahead of you, unless you can establish prior use in an unregistered form which itself requires evidence, time and resources.

  1. Registration process takes time

The trade mark registration process in Australia takes approximately seven months from filing through to registration, which can be longer if there are objections raised by the Trade Marks Office that need to be overcome. Therefore, it is always good to file your trade mark application as soon as possible, even if the full direction of the business has not been realised.

Also, the 'TM' symbol can be used next to your trade mark while a trade mark application is pending (and indeed even if an application is not as yet filed, to indicate that it is being used as a trade mark).

  1. Searches reveal risks

While undertaking searches of trade mark registers is not an essential step to securing registration, search results are valuable as they can identify whether there are any infringement risks in the use of your trade mark in the marketplace, for example, if there are other traders with identical or similar names who are operating within the same market.

  1. Infringement can be fatal

Under Australian law, and in most jurisdictions, trade mark rights will be infringed not only by an identical trade mark but also by a trade mark that is considered too similar. Consequences for the infringing party can vary in extremity.

In most cases where the infringer is requested to cease all use of its brand, this can be dire to the future of the business, not to mention a very costly exercise. This is particularly so if there has already been an investment in the marketing and advertising of the brand.

  1. Changing brand names is easier at the start

If there are issues with your trade mark that are identified through searches, it is much easier to change names or amend logos at the outset, prior to substantial costs and effort being incurred on marketing your brand and building your website or app. It may be necessary to amend your trade mark slightly to avoid an overlap with a similar mark.

In the case of insurmountable barriers to registration being identified, the recommendation may be to re-brand completely to avoid infringement and other issues down the track. This is much less burdensome at an early stage. Further, it takes time to re-design logos, develop new names, and secure new domain names or business names. Therefore, it is very important to obtain trade mark advice early in the process before spending too much time, effort and money in progressing the branding.

  1. Registered stronger than unregistered

Enforcing rights in an unregistered trade mark is possible, albeit much harder, particularly in disputes involving domain names. Therefore, it is advisable to secure trade mark registration as early as possible as this is the strongest form of brand protection your business can have in the fields of use most critical to your success.

As a business grows and flourishes, its reputation soon becomes synonymous with branding, and its trade mark can quickly become one of the most valuable assets in the business.

As a result, protecting trade marks at an early stage, or at the very least, obtaining advice about the best way to manage and enforce your rights in your business branding, with a view to implementing a broader business reputation management strategy, is key to getting your business off the ground and preserving and growing the value of your investment in your business.

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.

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