Defending your brand: Understanding trade mark infringement

Life as a business owner certainly brings plenty of excitement, challenge and opportunity – and the rewards can be substantial.  However there is also risk, trade mark expert Jacqui Pryor shares how you can protect your brand.

But starting your own business, building its reputation and growing your market also takes significant time, effort and resources (not to mention all the emotional investment) and therefore risk management should be a priority from the outset.

Trade mark registration is one of the very best defences for a brand – and it is equally important for a brand applied to a niche product or service as it is for a wide-ranging global brand.

If you register your brand as a trade mark early on, you minimise the risk of unscrupulous (or unwitting) competitors trespassing on your territory and damaging your business.  Trade mark registration also prevents you from infringing on another trader’s registered trade mark rights which can be just as detrimental to the financial health and longevity of your business.

Let’s take a closer look at trade mark infringement and how legal protections are the best way to defend your brand.

What do we mean by ‘trade mark infringement’?

Trade mark infringement is serious.

Trade mark infringement happens when another trader uses a sign as a trade mark that is substantially identical or deceptively similar to a registered trade mark without consent.   You can find more details on the ‘right to take infringement action’ the Trade Marks Manual of Practice and Procedure at the IP Australia website.

Consider this.  If another trader operating in the same marketplace has a brand similar to your registered trade mark, it could lead to customer confusion.  Consumers can be misled about the origin or quality of a product and depending on the trader’s conduct, your hard-earned reputation could be negatively impacted and your customers may lose trust in you.  Your brand value could suffer and ultimately, your small business may not have the capacity to weather the storm.

An unscrupulous trader using the same identity as yours could aggressively market their wares, price you out of contention and erode your customer base – and unless you have registered that brand identity as a trade mark and therefore have proprietary ownership over its use, it can be difficult to prove infringement.

Remember, lots of different things can be registered as a trade mark including logos, business names, slogans, aspects of packaging, sounds, smells, combinations of letters and numbers etc – and the only way you can guarantee exclusive use of your brand identity is to register it as a trade mark.

Why should I register a trade mark for my small business?

Many solopreneurs fall into the trap of thinking that their business is too small or their target market too niche to warrant the hassle and expense of registering a trade mark.   The truth is, trade mark registration is usually affordable and straightforward and no brand is too small to warrant investing in this vital safeguard.

Every solopreneur should do a comprehensive trade mark search before naming their business, product or service, deciding on a logo or slogan etc.  A search will reveal whether your intended mark is available, or whether it’s already registered.  There are free search options through IP Australia, but it’s generally a good idea to engage a trade marks attorney to assist with an in-depth search process to ensure all bases are covered.

And yes, you’ll find there are plenty of duplicate brand identities and business names out there, but this happens for a variety of reasons, including that a registered trade mark applies to a specific of goods and services .   For example, an environmentally friendly cleaning service and an organic juice bar could have the same registered trade marks – ‘Green Queen of Clean’ – because the name would apply to two totally different goods/services and the businesses would be operating in totally different markets.

Another reason for doing a comprehensive trade mark search in the early days of your start-up (ideally in the planning stages) is to avoid the possibility of being forced into a costly rebrand down the line as a result of infringement.  Just as trade mark registration gives you the power to take legal action against those who infringe on your rights, so too does it give earlier trade mark owners the right to prevent you from infringing on their rights.

Defending your brand

What happens when you discover someone is using your registered trade mark, or a confusingly similar brand?

Prompt and effective action is recommended – but with the disclaimer that it’s always best to get professional advice before rushing in with angry phone calls or letters of demand.  This will ensure that due process is followed and the best and most cost-effective outcomes are achieved in the shortest possible time.  There are instances where a seemingly similar brand does not infringe a registered trade mark so it is wise to understand your legal position before engaging in any communication with another business.

Brand defence is not a ‘set-and-forget’ situation

A registered trade mark is a valuable balance sheet asset and it needs to be treated as such.  Apart from coming with enforceable rights, a registered trade mark is a tradeable asset and can be sold, assigned or licensed.

Many a small business with a registered trade mark has reaped the rewards of attracting investment, expanding their markets by authorising others to use the mark or selling their business at a premium as a result of having this valuable asset on their balance sheet.  And that’s why every small business owner should have a trade mark strategy in place and should ensure that all their team members and associates are aware of the asset and its legal rights.

But brand defence doesn’t begin and end with trade mark registration.  It’s ongoing.  It is really important for solopreneurs to be vigilant about trade marks and regularly monitor the market for potential infringements.  It’s far better to be proactive than reactive when it comes to defending your brand.

A last word on defending your brand and trade mark infringement

Protecting your intellectual property is a key business imperative for you as a solopreneur.

By prioritising brand protection through trade mark registration, you will arm yourself against the threat of infringement through enforceable rights.

A registered trade mark is an important legal tool that can help establish and build your brand’s identity – and it is important that you not only understand the various aspects of trade mark infringement, but are vigilant and proactive too.  Prevention is always better than cure.

Trade mark registration means that issues associated with infringement can be prevented – or at least halted – and can be a key factor in the long-term success of your small business.

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