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Protect the brand identity of your startup why every founder should register

By James Wan

What you need to know (in a nutshell)

  1. A trade mark is a unique identifier for a product or service that tells the world that the product or service belongs to your business and distinguishes it from other similar products or services.
  2. A trade mark can be registered with IP Australia by completing an application process and paying a fee, this gives public notice of your legal rights and allows for more robust protection against competitors.
  3. A registered trade mark serves as proof of ownership, can be sold as a business asset and can be licensed to others to use on your terms. It also allows for legal enforcement options.

Full Article

A trademark registered with the relevant authority can be of great value to a business, and also allow them to enforce its legal rights.

After all your hard work in creating a new business, it’s time to turn it into something profitable. One of the first questions you should ask yourself is whether or not trademarking would be beneficial for you and what advantages there are with doing so. Not sure if an unregistered mark will offer any protection? Read on for answers!

What’s a trademark?

A trademark can identify a product or service as distinctive and serves three key functions:

  1. It informs the world that a particular product/service is owned by them.
  2. It makes the product or service stand out from its competitors.
  3. It prevents rivals from using the same products/services to compete with this brand.

Trademarks don’t only cover brand names and logos, they can also incorporate:

  • Designs
  • Images
  • Shapes
  • Sounds
  • Colours
  • Words
  • Numbers
  • Scents
  • Packaging

Unregistered words or phrases for products or services can be a trademark if they’re well-known and recognised by the intended audience. The ™ symbol may be used to identify it, yet for best security registration should also be considered.

Registering a trademark with IP Australia includes completing an application and paying the applicable fee. This puts your trademark on public record, denoting legal rights for you (indicated by the ® symbol). To successfully register:

  1. Do a trademark clearance search to make sure no other similar brands are already registered such as with <https://www.
  2. Select the right goods and services for your trademark carefully.

People often mistake trademarks for business names, company titles and website addresses. For example, the Oodie is an oversized wearable blanket that clearly illustrates this point.

The Oodie was released in 2020, however, it wasn’t until the Covid-19 pandemic caused Australia to go into lockdown that sales of this product skyrocketed. In November 2020, the Oodie became a registered trademark as a word mark.

Although the name of Davie Clothing Pty Ltd. is different to their trademark “Oodie”, their respective processes and given rights vary greatly.

What protections does a trademark provide?

Different from a business name, the trademark grants you exclusive rights to its use. If other companies try to utilize it without permission, legal action can be taken against them.

The trademark of the Oodie helps to differentiate it from other companies’ versions of wearable blankets, while also guaranteeing a certain quality. Thus, this trademark not only identifies but ensures we receive a superior product.

What benefits come from registering a trademark?

Ownership of a registered trademark can be beneficial to have in the case of legal disputes. It has an even greater value though, as it is considered an asset when selling your business. The more successful you are with your brand, the higher its worth and potential for licensing will become.

The legal options available to you differ depending on if your trademark is registered or not. To take someone to court for infringing an unregistered mark, you may need to prove a significant business reputation related to the mark and/or apply Australian Consumer Law against misleading conduct. However, it’s crucial that your standing in the industry be established first.

If your trademark is registered, the trademarks Act gives you access to legal options and shields it anywhere in Australia. This act dispels the need for a connection between your brand’s reputation and its trademark since this link can be challenging for unregistered trademarks. Registering reduces these barriers which facilitate efficient enforcement of protection rights.

What factors should I take into account?

When considering whether to register a trademark for your business, ask yourself the following questions:

  • Is my product or service unique?
  • Is it eligible for trademarking?
  • Did I perform a trademark clearance search?
  • Is my company anticipating major expansion?
  • Are my competitors likely to use my trademark?
  • How fierce is the competition in my industry?
  • What methods will I use to advertise my business?
  • Cost-benefit analysis of registering a trademark to the benefit it can provide my business?

Each enterprise will have different answers to these questions. They may not provide decisions but they can allow someone to make informed guesses about how their business might progress. Registering a trademark out of caution is also something that could be done and it’s worth thinking over those queries before making any moves.

Key takeaway messages

An unregistered trademark can protect a start-up, but registration brings additional assets. trademarks that are registered may be bought, sold and licensed; plus the enforcement options increase for these owners too. Therefore, registering is a usually wise decision to make.