I’ve got a business name registered. Does that give me trade mark rights?

Business names and company names are not the same as trade mark registrations.

A trade mark is how you identify your product or service offering, like a brand name or logo. Registering that trade mark is the best way to protect your intellectual efforts and stop copycats.

On the other hand, business names identify a business trading under a name other than the legal entity name, and a company name is a type of legal entity. A registered business name or company name does not give you exclusive use in the name or give you the legal right to use it on your product or service offering.

Do I need to register a trade mark?

There is no requirement to register a trade mark. However, a registered trade mark is easier to enforce and less expensive to protect than an unregistered trade mark. For example, you can request social media sites to remove accounts or posts that infringe your trade mark rights if you can prove you are the registered trade mark owner. However, this is not available if you have no registration. Enforcing your rights in an unregistered trade mark is difficult and relies on your established reputation in the trade mark or demonstrating that the other brand is likely to mislead consumers.

What can I register as a trade mark?

You can register words, logos, phrases, taglines, initials, images, graphics, elements of product packaging, colours, shapes, movement, and smells. The key is that the trade mark is distinctive of the goods or services being provided.

Should I register my brand name, logo, or both?

Registering a word trade mark will protect your brand name, whereas registering the logo will protect the overall logo design elements. Businesses often register both to provide the fullest protection of the brand and protect future use of the name.

Why should I use a trade marks attorney instead of self-filing?

The reason for choosing to use a trade marks attorney is much the same as using an accountant to file your taxes or a mortgage broker to negotiate a good rate. While you can do it yourself, many find that it is more effective to outsource this work as it is not the best use of time.

Trade mark law is complex and has many niche considerations. Managing your trade marks yourself requires your time to research and your resources to file the application, but this still does not guarantee that your application won’t have mistakes. Using a registered trade marks attorney takes all the effort and risk off your shoulders so you can focus on spending your valuable time building your business.

A trade marks attorney has specialised knowledge in intellectual property law, acquired through a separate qualification and registration than an ordinary Australian lawyer or solicitor. They can provide clear advice and manage the process for you, much like your accountant would manage your tax filings for you!

Can I change a trade mark after filing or registering it?

It is difficult to change a trade mark after it has been filed or registered with IP Australia. There are limited options available for amendment of a trade mark, so it is vital that your trade mark application is correct before it is lodged. In most cases, fixing an error in a trade mark application or registration requires you to re-file the trade mark application.

Why should I get a clearance search?

Before any use of a trade mark, it is important to get a clearance search. This identifies if anyone has already registered the same or a similar trade mark, or is using the same or a similar trade mark under common law. Clearance checks reduces the risk of trade mark infringement actions which could result in product recalls, rebranding, and damages.