Guest article written by Nathan Donovan, Principal of Brisbane commercial law firm, Donovan Legal.
When I talk to business owners about trade marks, they usually come back at me with the same old reactions.
If you’re a business owner ask yourself this question; “What is my brand and what is it worth to my business?” For many businesses their success will be tied to both the strength of their unique selling proposition and its ties to their brand. What you don’t want is to put all your energy into creating a great product or service only to see a competitor imitate your brand. Trade mark registration is designed to protect your intellectual property rights to your own brand. That being said, the only way to utilise the benefits of trade mark registration is to first understand how they work.
A trade mark extends beyond just the name of your business and its logo. It includes almost anything which distinguishes your goods and services from those of a competitor. Some of these distinguishing features can include letters, shapes, colours, sounds and even scents.
It is crucial that that your trade mark is unique and distinctive rather than just descriptive. If your mark simply describes where you are (e.g. Brisbane Dentists), what you sell or do (e.g. Burger Joint), or the kind or quality of your goods and services (e.g. Best Cold Beer), chances are, your trade mark would not be capable of registration.
A registered trade mark is recognised as a type of personal property that can be sold or commercialised (e.g. franchising and third party licensing). Once your trade mark is registered you have the exclusive right to you use your trade mark throughout Australia in relation to the goods and services specified on your trade mark certificate. In fact, at the same time you register your trade mark in Australia, you can also register your trade mark in other countries, provided they are signatories to what is known as the Madrid Protocol (which most major economies are).
It is important to understand that business and company name registrations are not designed to give business owners proprietary rights in the name. In reality they serve to enable the public to find out which individuals or legal entities stand behind the business name or company.
The ASIC, which manages business and company name registration, has some administrative processes designed to restrict registration of the same or similar business names. Strictly speaking, business name registration does not prevent someone from registering a business name that is:
Similarly, registration of a business name will not prevent a competitor (or even a cyber-squatter) from registering the same or a similar domain name to your business name. When it comes to .com.au domain names (a second level domain or 2LDs), it is good to keep a few things in mind.
Trade marks can be registered online at www.ipaustralia.gov.au. This website offers a wealth of information to guide you through registering your own trade mark. Of course the safest thing to do would be to seek out a lawyer or trade mark attorney to register your trade mark for you. Doing your own trade mark registration can be risky and it is far better to talk to an experienced lawyer who can ensure your trade mark is properly registered with the broadest protection possible.
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