today i have asked Jacqui Pryor from Mark My Words Trademark Services to provide us with a little "TRADEMARK 101". i recently had a new biz very closely mimic my biz name and branding, and jacqui was kind enough to answer my questions about brand protection, so i know this post will help all little biz owners!
Trademark Registration = Brand Protection!
So you’ve invested time, money, blood, sweat and no doubt some tears into coming up with the perfect name for your business or product or the perfect logo that tells customers who you are (I know I did!)... but how do you protect them to make sure they are yours and remain yours? The answer is simple – register your distinctive names, logos, slogans and other ‘signs’ as trademarks!
Whilst the answer is simple, the area of trademarks can be complicated and often misunderstood. There are so many things to consider and understand about trademarks and trademark registration in order to successfully protect your brands. To explain every aspect in this post could see me writing for days and you reading for days, so I hope to address some of the ‘main’ points in this post. I invite you to read our full Guide to Australian Trademark Registration for an in depth look at the process.
What is a Trademark?
Technically, a trademark exists whether registered or not. It is any ‘sign’ that you use as a badge of origin for your goods or services – the distinct element that ‘brands’ your products and business as yours and separates them from others. It can be a name, image, slogan, colour, scent, sound, aspect of packing or any combination of these.
A registered trademark is a protected version of the above. The owner of a trademark is given the right to use that mark for goods/services they nominate (a right you don’t get otherwise – a business or company name registration doesn’t actually give you the right to promote that name). They also gain the right to license use of the trademark to other people, as well as stop others using the same or confusingly similar trademark. Without trademark registration in place you run the risk of infringing someone else’s rights, but you are also close to powerless in stopping others from using deceptively similar names and logos.
How do I know if I can register my trademarks?
There are certain things that simply can’t be registered as trademarks. For example, anything too scandalous or would be contrary to law; anything that would straight away confuse the public. Generally speaking there are two main things to consider:
- Is your trademark actually a trademark? If your name is too descriptive or is too common in connection with your industry it could be difficult to register;
A trademark search can help identify any problems you may face during the trademark application process (which takes a minimum of 7.5 months in Australia!). To save time, money and potential heart ache we always recommend a search be done as early as possible.
Goods & Services
Trademarks are registered specifically in relation to the type of products or services they are used to brand. All goods/services are separated into classes or categories, which must be nominated at the time of filing your application. Therefore, it’s important to have a clear idea of not only your current products and services but also where your business may grow to. Including as many classes of goods/services now could save time and money in the future.
For example – if you have a new logo that you use for a clothing label, you would register in one of these classes that cover clothing. However, if that same logo is used as a brand for handbags & wallets, then you would need a second class. Ultimately, you then gain the registered rights described above in relation to clothing, handbags and wallets.
I export my products, so if I register in my country will I be covered?
Unfortunately not. Intellectual Property rights, including trademarks, are a country-by-country. For instance, if you register in Australia you have the right to use, license and control the use in Australia. If you export a branded product to the United States for example you should also register there – plus, make sure no-one else already has!
Australia is member to certain international agreements that can offer benefits when looking to register outside of Australia. One of these agreements gives you a 6 month period to file overseas (from the date filed in Australia) and the international offices will treat the application as though filed on the same date as in Australia. The other is an international filing system that allows you to file a single application and nominate member countries (there are around 80 members to select from), rather than having to file a separate application for each country. International trademark registration, and use of the ‘single filing system’ can be complex, and success is dependent on a number of factors so advice should always be sought. For more information about international trademark registration, read our Guide to International Trademark Registration.
Isn’t that the same as copyrights and patents though?
Nope. Trademarks, copyrights, patents and other things are types of Intellectual Property with each protecting a different thing. Copyright is an automatic right granted to the author of original works that are categorized as copyright; trademarks protect ‘distinctive signs’ that are used to brand products and services and patents cover new devices, substances, methods etc that are inventive and useful. You can also protect the appearance of a new product through design registration and even protect new breeds of plants! Whilst copyright is automatic and doesn’t require registration, to be seen as the official owner and gain protection of trademarks, designs or patents you must officially register.
- Have a trademark search conducted as early in your business as possible. And, where possible before investing time and money into business/company registration and logo design. There’s nothing worse than finding out after you are set up and operating that you have been inadvertently infringing someone’s trademark rights and have to rebrand and start over.
- Use the ™ symbol with any distinctive names/logos. This will deter people from copying, as they will assume this means a protected trademark when it doesn’t. Note that you cannot use the ® symbol though unless fully registered. This represents a registered trademark and it is actually an offense to claim something as registered when it’s not.
- Seek professional advice and assistance! On the surface applying & registering a trademark can appear simple, but often it’s not. There are many advantages to using a trademark agent. It might seem more costly initially but will often be less expensive in the long run.
Jacqui Pryor is the director of Mark My Words Trademark Services. Jacqui has 13 years of experience in Australian and International trademark matters and her company aims to provide affordable, friendly and reliable services to small businesses in an area often assumed reserved for big business. Click hereto receive your free trademark search.
Mention Build a Little Biz in your enquiry or search request to receive 10% off professional fees for your application!