Before you invest time and energy into building a new brand, conduct a trademark search – a simple search can quickly reveal any identical trademarks registered in relation to similar products or services.
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There’s a lot to think about when you’re a start-up or small-business owner. Thinking about other business’s trademarks probably isn’t on your ‘to-do’ list. Have you thought about what would happen if you discovered that another business had already registered a trademark for a similar business name or brand in your industry? You could be infringing their intellectual property, and dealing with this trademark infringement can be costly and involve a lot of time and energy. Here are five ways to avoid these problems.
1 Register your trademark as soon as possible
Being proactive and taking steps to protect your trademark/s will add to the value of your business. The process to register is lengthy so we encourage trademark applications as soon as possible. Owning registered trademarks can put you in a stronger legal position to defend against infringement claims. Plus, you may then be able to stop others if they commence use of similar brands in your industry.
2 Conduct a search for trademarks
Before you invest time and energy into building a new brand, conduct a trademark search – a simple search can quickly reveal any identical trademarks registered in relation to similar products or services.
3 Before you use source materials – get permission
Using this material without getting permission from the person who created the material means you could be infringing copyright. Ensure you are familiar with any licensing terms on downloaded images. Using any materials that include a brand name, logo or mark without permission from the owner means you’re possibly infringing trademarks.
4 How to deal with an alleged trademark infringement
You’ll find out if another business believes you’ve infringed their trademark usually via a letter of demand. The first step if this occurs is to seek advice before responding to the letter. It is upsetting to receive these letters, and sometimes they can be a bit scary – however, appropriate advice will help determine whether you must comply with the demands made, or, if you have valid grounds to defend the allegations.
If advice suggests you may in fact be infringing the rights of another party, ceasing the alleged infringement will usually bring the matter to an end quickly without further action. Each case is different of course, which is again why seeking advice early is important.
5 Avoid using misleading trademarks and names
When you’re starting your business, make sure you use names and descriptions that don’t confuse customers. If another business felt you adopted a brand or name so as to mislead consumers into believing there is some affiliation with that other business they could make an allegation that you are ‘passing off’ or are breaching the Australian Consumer Law.
Generally, the question to ask yourself to help determine if your proposed brand may infringe is:
‘Is it likely that consumers are going to confuse my proposed brand with that of an existing registered trademark or with the reputation of another brand or business?’
If the answer is yes, confusion is likely, consider alternative names or seek advice.
Top tip
The surest way to ensure that you are:
- (a) granted the right to use your brand and not infringe a registered trademark; and
- (b) in a position to stop others in your industry if they commence use of the same/similar brands to you,
is to ensure you register all of your trademarks as soon as is viable for your business.
Brought to you by Jacqui Pryor, Registered Trade Marks Attorney and Director, Mark My Words Trademark Services Pty Ltd
