We hear the words trade mark being bandied about every day, with the concept often being associated with celebrities and the entertainment industry – some people, for example, might consider Donald Trump's hair to be his "trade mark". And while many would not consider his comb-over particularly valuable, there are a lot of trade marks that are very valuable, particularly in business.
The importance of brand
Business owners can spend the life of their business building their "brand" - developing relationships, providing outstanding products and services and going above and beyond to set their business apart from their competitors.
The benefits of all of this hard work will hopefully be rewarded with increased business and satisfied clients but there are also long term rewards that can be reaped from this commitment to brand-building, including if one day, you make the decision to sell the business you have created. This is the time at which the brand that you have created has the potential to repay you in spades, as long as you have a brand to sell.
Trade mark registration is integral to brand creation, growth and protection. A registered trade mark, or marks, should form the foundation of the marketing and brand protection strategy of any business.
What is a trade mark?
A trade mark is a right that is granted for a letter, number,
word, phrase, sound, smell, shape, logo, picture and/or aspect of
packaging. Some of the world's most famous companies are
instantly identified by reference to their trade marks:
How do you best protect your trade mark?
The best way in which to protect your trade mark is by registering it with IP Australia so that it appears on the register of trade marks.
A registered trade mark is legally enforceable and gives you exclusive rights to commercially use, licence or sell your trade mark for the goods and services for which it is registered.
There are many benefits of having a registered trade mark if trading in Australia, including:
- distinguishing your business from others in the marketplace;
- providing a tangible and recognisable method of marketing and developing the reputation of your business in a particular market;
- providing you, as the trade mark owner, with the exclusive right to use the trade mark in relation to the particular goods or services for which it is registered throughout the Commonwealth of Australia (i.e. all States and Territories of Australia);
- enabling you to licence the trade mark to third parties;
- affording protection and enforcement rights Australia-wide against third parties under the Trade Marks Act 1995 (Cth); and
- creating a valuable business asset that can be bought and sold.
So how do you get a registered trade mark?
Usually, the process to obtain a registered trade mark is neither complex nor particularly expensive but it can be lengthy and it is essential that before lodging your application you:
- determine the classes in which you will apply to register your trade mark and the descriptions that you will seek to apply to your trade mark to ensure you have proper protection;
- undertake preliminary searches of the trade marks register; and
- consider whether it is likely that your trade mark application will fail (including for descriptiveness or conflicts with prior registered marks).
Once you are comfortable with the above, your application should be lodged with IP Australia, examined and then either accepted or requisitioned if there are issues with the application. Once your trade mark is accepted for registration, the trade mark then goes through an advertising period where third parties will have an opportunity to oppose the registration of your mark before your registration is finalised.
You should also consider international trade mark protection if your business is trading internationally.
The key take away message is that trade mark registration is one of the essential issues to be considered by all business owners, large and small, both at the commencement, and throughout the conduct of business in Australia to ensure that your brand is protected and is a valuable asset for any future sale.
