Business Names vs. Trade Marks

Be Trade Mark Savvy!                                       

Brett Lewis, Trade Mark Lawyer*

Your product or service offering has its own “look & feel”, reflecting the image you want to create in the mind of your customer and the messages you want to convey. That’s the role of branding.

Trade marks play a key role in all branding strategies. Almost anything which differentiates your product or service from those of your competitors is functioning as a trade mark – not only words and logos but things like colours, combinations of colours, sounds, unique aspects of packaging and even scents. 

Like business names, trade marks can be registered.

A common misconception is that a business name registration provides ownership of the name or a right to use it but in fact it is simply a mandatory requirement if you are trading under a name which is not your own. It then becomes possible for someone, to identify who is behind the business. The business name register is much like a directory. No rights arise from registration. No rights to sue someone using the same name. No rights to continue to use the name if someone complains about your use of it. 

Trade mark registrations are different. They provide exclusive rights to use of the mark. Rights to sue infringers. Property rights which can be sold or licensed, like other property rights. The right to prevent use of the same and similar marks…and even registered business names.  A way to block others from registering your trade mark and similar marks.

Getting a product to market is no easy task. There are so many things to think about along the way. Many businesses just assume that a business name will cover them and are not even aware of the trade mark registration system.

Sadly, there are countless examples of traders who have launched a product only to find themselves in a costly legal dispute involving allegations of trade mark infringement. In the worst-case scenario, court orders are the end result with hefty monetary penalties and a re-brand.  The more successful your business has been, the higher the stakes.

So – at the outset, it is worth getting practical legal advice to identify potential problems and either navigate around them or change course and choose a different mark.

But it’s not too late to register your trade mark if you are already using it and you should. 

Registration gives you a way to preserve the integrity of your trade mark and if you sell your business one day, the strength of your trade mark rights is likely to drive the value of the deal. 

*Brett Lewis is Founding Principal in TM-Logic®, a firm specialising in advising on acquisition and enforcement of trade mark rights: www.tm-logic.com.au

These are generalized comments and should not be construed as legal advice or relied upon to make business decisions.  There are many complex legal issues in the trade marks arena and strategic advice should be sought before making a commitment to use a trade mark or seeking registration.