Trademarks mean business!

An opportunity AND an advantage, worth protecting.

The milk of human kindness is a wonderful thing. While there may be merit in various worldviews that suggest that sharing is caring, as a business owner you must not give the power of your precious brands away. Allowing others, regardless of whether they are competitors or not, to help themselves to the benefits of your exclusive trademarks often marks the beginning of the end (or conversely the end of a promising beginning if you are a start-up).

The fact that trademarks are the commercial lifeblood of a commercial entity cannot be overstated. Your trademark encompasses every unique facet of your business: its purpose, integrity, origin and perhaps even your favourite colour… or not. The point is that it is a precious and vital component of your business’s commercial make-up and must be protected if it is to work effectively for you.

To that end I can summarise what effective use and protection may look like by explaining five steps that must be taken if your trademark is going to work for you.

1. Make your mark, the right way

When people encounter your trademark either verbally or visually they should automatically and perhaps even subconsciously join the dots that outline your identity, commercial essence and the qualities with which your brand should be associated.

Tips:

  • Ensure you can obtain a website address with your mark.
  • Your trademark should not be overly descriptive as this may stymie the effectiveness of product expansion (eg Lounge Guitars had a lot of trouble getting into the expanding keyboard market… before closing down).

2. Ensure you own the mark

Even when rebranding is fun, it is still very costly when done properly. Little wonder then that having worked hard to establish your business and getting your trademark to work for you, being forced to rebrand due to lack of due diligence can be devastating! In the same way that sabotage can be devastating. Make no mistake, when you expose your business by not ensuring that a trademark is available, you are risking everything.

Tips:

  • Search trademark registers and investigate general industry search facilities to ensure your mark or something similar is not owned by someone else.
  • Make sure you have the rights from your designer or the people who helped to develop the mark.

3. Register the mark

Everybody could use a head start in business and that’s where a trademark registration that certifies your rights to leverage your mark to press home a commercial advantage puts you ahead of the game. Don’t be fooled; merely claiming and using a trademark will not provide prima facie rights (#ilovelatin) – it’s not first in, best dressed unless you register your mark in any one of the 45 classes. Without this you do not have enforceable rights for that mark.

Tips:

  • Protect against encroachment by confusingly similar goods and services or logos by registering your trademark.
  • Protect each important version of trademark used. Verbal use will require standard written form separate to protecting your visual logo form.

4. Maintain benchmark consistency

Consistency is key to the successful use of the trademark – note: changing from all capitals to only first letter being a capital letter is not consistent use.

A mark must be used as an adjective. In this way you are not likely to use it to describe or outline your goods or services. Instead you are identifying your unique goods and services by your mark.

Tips:

  • Further ensure that you identify that the mark is a trademark by using the ™ symbol or using the ® symbol if it is a registered trademark.
  • Maintain the same font and colour as much as possible.
  • If it becomes necessary to update the look of your mark, you can do so if it does not substantially alter its nature.

 5. Police your mark

The marks of ‘Escalator’ ‘Doona’ and ‘Texta’ are great created words that form great memorable marks. However, each of these words became generally known as the goods themselves. The moving stairs invention was and still is known as an ‘escalator’ regardless of who makes it. This trademark has been lost. The owners of the Doona™ and Texta™ marks are taking great strides to reclaim their association and to remind people to use other words to describe the goods such as eiderdown or felt pens.

Tip:

  • Although it might feel like a great compliment, make sure people do not use your trademark in place of a product or service description. Otherwise you are throwing away your asset.

Remember, your registered trademark is an asset that, when used properly, may give you a real commercial advantage in your market. Keep it that way.

Martin Earley, Director at BaxterIP

BaxterIP.com.au