What Are The 5 Key Steps To Protect Your Business Brand?

Summary

• Registering a business name with ASIC gives you the right to trade under that name in Australia but does not provide exclusive rights to it, meaning only trade mark registration with IP Australia gives you enforceable protection against competitors using the same or a deceptively similar mark.
• Copyright protection in Australia is automatic under the Copyright Act 1968 (Cth) for original works, but trade marks must be actively registered and defended, as the owner is responsible for monitoring the market and taking action against infringement.
• Before settling on a business name, you should search the IP Australia database, check relevant trade mark classes and conduct online searches, as international businesses frequently register and actively defend their trade marks in the Australian market.
• This article is a plain-English guide to protecting your business brand from competitors in Australia, written by LegalVision’s business lawyers.
• LegalVision specialises in advising clients on trade mark registration, IP protection and brand enforcement.

Tips for Businesses

Register your trade mark with IP Australia before investing in branding or marketing. Do not assume ASIC business name registration protects your brand. Monitor the IP Australia register regularly and act quickly if you identify a similar mark, as delays can weaken your position.

A trade mark is a form of intellectual property that identifies and distinguishes the goods or services of one trader from those of another under Australian law. IP Australia administers trade mark registration under the Trade Marks Act 1995 (Cth), which grants registered owners exclusive rights to use their mark in nominated classes of goods or services. ASIC manages business name registration under the Business Names Registration Act 2011 (Cth), though this does not confer exclusive rights. Copyright protection arises automatically under the Copyright Act 1968 (Cth) without registration. This article highlights five essential steps to safeguard your business brand from competitors and strengthen your market position.

1. Choose a Unique Name

The first step in protecting your brand is choosing a unique and distinctive business name. This is crucial to establishing your brand identity and building brand awareness. Business names that are unique and inventive, rather than descriptive, are generally easier to protect and will help to set your brand apart from your competitors. 

Before selecting a name, conduct comprehensive searches to ensure no similar trade marks are already in use in Australia or any international markets where you intend to operate. This includes:

• checking the IP Australia database for registered trade marks or pending applications;
• searching for similar trade marks in the same classes you intend to register; and 
• conducting online searches using search engines and social media platforms.

Remember that many international businesses register their trade marks with IP Australia. They also actively defend them in the Australian market. Therefore, it is crucial to consider both local and global brand presence when choosing your business name.

2. Register your Business Name with ASIC

Registering your business name with ASIC is critical if you intend to conduct business under a name other than your own (or your partner’s) name. This registration gives you the legal right to operate under your business name in Australia. However, it is essential to note that this registration alone does not provide you with exclusive rights to the name, nor does it prevent others from using a similar name in a similar industry.

To register a business name:

• visit register.business.gov.au;
• complete the online application process; and 
• pay the registration fee. 

The registration fee is currently $44 for one year or $102 for three years. 

3. Use a Trade Mark or Copyright Notice

Implementing copyright and trade mark notices can be a simple yet effective way to assert your rights and deter potential infringers.

Trade Mark Notice: A trade mark is a form of intellectual property that signifies a business’s branding elements. This includes its name, logo, or slogan. You can use the ™ symbol next to your trade mark, even if it is not yet registered with IP Australia. Using the ™ symbol signals to third parties that you are using the trade mark to distinguish your goods and services from those of other traders.

Copyright Notice: Copyright refers to protecting the material expression of original ideas. You can add a copyright notice © to your original works, including content, images, reports, websites, and social media pages.

It is essential to understand that copyright protection in Australia is automatic under the Copyright Act 1968 (Cth) for:

• original literary;
• dramatic;
• musical; and 
• artistic works. 

This protection applies if:

• you are an Australian resident or citizen;
• if the work was first made or published in Australia; or
• if the work has a specified connection with a country that is a member of a relevant international copyright treaty.

4. Register your Trade Mark with IP Australia

Registering your trade mark with IP Australia is another crucial step in protecting your business brand. A trade mark registration grants you:

• exclusive rights to use your trade mark in the classes you have registered in; and
• protection backdated to your filing date. 

You can also use this registration to prevent others from using your trade mark, or a deceptively similar mark, in the classes you have registered.

When you apply to register a trade mark with IP Australia, you must nominate one or more classes of goods or services. IP Australia uses the Nice Classification system, which divides goods and services into 45 classes.

For example, class 25 covers clothing, class 35 covers retail and business services, and class 41 covers education and entertainment services.

Your trade mark protection only applies to the classes you register in. If a competitor uses your mark in a class you have not registered, enforcement becomes significantly harder.

Before filing, think carefully about every product or service your business offers now and what you plan to offer in the future. Registering in too few classes is a common and costly mistake. Each additional class attracts a separate fee, but the cost of re-filing or pursuing infringement in an unregistered class is far higher.

Key benefits of trade mark registration include:

• exclusive rights to use the trade mark across Australia for your specified goods and services;
• enhanced legal protection against unauthorised use of your trade mark; and
• the creation of a valuable business asset that can be licensed or sold.

Once your trade mark is registered, you can immediately use the ® symbol next to your brand. This symbol signals to third parties that you have a registered trade mark and may help to deter potential infringers.

5. Defend your Trade Marks

Actively defending your trade marks is crucial to maintaining their strength and value. This involves:

• regularly searching IP Australia’s trade mark register;
• monitoring activity in the marketplace; and 
• taking action against potential infringers.

Monitor Your Trade Marks: It is essential to conduct regular searches for your trade marks (and variations of them). Our experienced IP lawyers can assist you in completing detailed trade mark searches.

Take Action Against Infringement: If you discover a competitor using your trade mark or a deceptively similar mark, consider sending a cease and desist letter. This letter should include:

1. Details of your trade mark, including your use of the mark and registration information.
2. A statement about your established reputation and goodwill.
3. A request for the infringing party to stop using the similar or identical trade mark immediately.

If relevant, include a discussion of legal concepts such as passing off and misleading or deceptive conduct.

Key Takeaways

Protecting your business brand is crucial for maintaining your reputation and market position. To effectively safeguard your brand:

• choose a distinctive business name and register it with ASIC; and 
• register your trade marks with IP Australia. 

It is also crucial to use appropriate trade mark and copyright notices and actively monitor and defend your trade marks against third parties. By implementing these steps, you can develop a strong brand protection strategy and reduce the risk of intellectual property disputes.

If you have any questions about protecting your business brand, LegalVision provides ongoing legal support for businesses through our fixed-fee legal membership. Our experienced trade mark lawyers help businesses manage contracts, employment law, disputes, intellectual property, and more, with unlimited access to specialist lawyers for a fixed monthly fee..

Frequently Asked Questions

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.