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This is a phrase we hear often, and particularly from small business owners. A business name is a legal requirement in Australia if you are trading, or intend to trade, under a name that’s different to the name of the ‘legal personality’ – e.g. the sole trader’s name or company name.
However, registration of a business name doesn’t actually provide the right to use that name and will serve as little defence against an allegation that use of the name is a trademark infringement. Trademark registration in Australia is recommended to protect a brand, business name or logo.
A trademark, by definition, is:
a sign used, or intended to be used, to distinguish goods or services dealt with or provided in the course of trade by a person from goods or services so dealt with or provided by any other person.
A ‘sign’, most commonly, is a name or a logo – think Google, Microsoft, Coca Cola and the Nike ‘swoosh’ – but can also be a colour, shape, sound or smell. By registering your trademarks formally you are granted certain rights to that trademark, in connection with the goods or services you have listed. This includes the right to use your trademark for those goods/services and the right to authorise others to use your trademark for the relevant products and services.
By registering a trademark you may then be able to stop others who may be infringing your rights. Without trademark registration in place it can be difficult – and at times even impossible – to stop others from using similar brands in respect of the same sorts of products and services you deal in.
As soon as you come up with a new name for a business, product or service trademark searches should be at the top of the to-do list. An initial trademark search can help ensure that your chosen name is not likely to step on the toes of an existing trademark holder.
Following a trademark search you should then consider filing trademark applications. The trademark registration process in Australia is lengthy – taking a minimum of seven-and-a-half months from start to finish. It is for this reason we suggest getting the process underway as early as possible.
Trademark registration is thought to be very expensive and this often deters small business owners. It doesn’t have to be as costly as often thought, and is certainly less costly than having to defend against infringement allegations, rebrand or potentially lose business to competitors using similar brands.
Brought to you by Jacqui Pryor, Registered Trade Marks Attorney and Director, Mark My Words Trademark Services Pty Ltd
