What is a Trademark?

A trade mark is something that is used to distinguish your goods and services from that of another trader. It is often a name or a logo (or both), but it can also be a letter, number, phrase, sound, smell, shape, aspect of packaging, picture or any combination of these.

A business name in itself is not a trade mark, and a business name registration does not provide you with proprietary rights as does a trade mark registration.

Benefits of Trademark Registration

There are several benefits of having a trade mark registration, even apart from whether or not you have a corresponding company or business name for your brand. These advantages stem from the fundamental legal difference between trade marks and mere business or company.

 

Trade marks provide you with a proprietary right to exclusively use your name or brand. It’s a powerful right that can be enforced against any other party in Australia. On the other hand, company and business names are not proprietary. Their function is merely to serve as an indicator to the public as to who they are dealing with. It does not give you any exclusivity. As such, apart from registering the exact same company or business name, other parties are generally free to use something very similar.

By way of example, suppose I started a business two years ago selling chairs, which I decided to call “RETRO GREEN” and duly registered the company RETRO GREEN PTY LTD and Victorian business name RETRO GREEN. Each chair I sold was labeled with the RETRO GREEN brand. The company and business name registrations, of themselves, would not prevent another party from being able to set up a similar business called, for example, GREEN RETRO or RETRO GREEN FIT selling tables. They would certainly be able to register the relevant business and company names.

However, were you to have a trade mark for RETRO GREEN in relation to chairs, you would have been able use your exclusive right to prevent the other party from using GREEN RETRO or RETRO GREEN FIT, in relation to chairs or similar products (which would include tables).

In summary, a trade mark registration is a potent proprietary right that enables you to prevent other parties form using a brand or name “similar” to yours in relation to “similar” goods or services.

More Benefits of Registering a Trademark

Preventing Others Encroaching on Your Brand – This is the fundamental strength of a trade mark registration. Unlike a “common law” trade mark, exclusivity is immediate upon registration, easy to prove, and has broad coverage. The strong and broad rights provided by registration mean in many instances a “cease and desist” letter to an infringer will be enough to stop them using your name. If this does not work, a court proceeding on the back of a trade mark registration is much simpler than one relying on “reputation” which you may not have or is otherwise difficult and expensive to prove.

Australia Wide Protection – Even if you are only currently using your mark in one State, you will be able to prevent others from using your trade mark, or something deceptively similar, in any other State or territory in Australia. A great tool if you want to expand.

Trade Marks are Valuable Property – A trade mark is a valuable piece of property that can be sold or licensed. Its exclusive nature can be a valuable asset.

Deterrence – A trade mark registration lets others know immediately that you have strong legal rights in your name or brand and that they should stay away from using it, or something deceptively similar.

A Defence – A trade mark registration can also be used as a “shield” to prevent a claim by another party of infringement upon their mark.

Protection Forever – Once your trade mark is registered, so long as you pay the renewal fees every 10 years, your trade mark will be registered perpetually. If you are curious, the first trade mark on the Australian register is dated 2 July 1906, and is registered in relation to “chemical substances”.

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