How to protect your brand with a trade mark

2024 looks to be another year of tricky trading conditions, and heightened competition for small businesses as the rising cost of living, the ever growing online world and cross-border commercial activity continue to bring challenges as well as opportunities.

Whilst there are numerous things to look at in view of these conditions, one thing that I suggest is worthwhile is brand protection – particularly when trading online or cross-borders. The simplest way to protect a brand is through trade mark registration.

How will a registered trade mark protect my brand?

A trade mark is a unique identifier for your brand – distinguishing your product or service from others.

A registered trade mark safeguards your brand by, firstly, providing you with the right to use your brand for the goods/services you provide but also by providing it with enforceable legal rights with regards to its commercial use. This means that if you conduct business in the public domain, a registered trade mark enables you to take action against anyone using the same – or very – similar brand identifier for similar goods or services which can result in consumer confusion and your reputation being eroded.

What can be registered as a trade mark?

IP Australia is the governing body for most intellectual property in Australia, including patents, designs and trade marks.

It’s possible to register a trade mark for just about anything that differentiates your offering from your competitors. This could be a business name, logo, slogan, tagline, phrase, movement, sound, colour or even a smell! – so long as it distinguishes your product or service from others in the marketplace.

Trade marks are registered under classes of goods and services. There are 45 of these classes in which a trade mark can be registered. When filing an application you will need to describe your business’ goods/services within their relevant classes. This allows parties to own the same or very similar trade mark as long as they are used in different markets. For example, ‘Flybynite Travel Consultants’ could co-exist happily with ‘Flybynite Sleepwear’ as could ‘Cool Runnings Footwear’ and ‘Cool Runnings Pizza’ because there is no conflict of interest or competition for the same target market. It’s also possible for similar trade marks to exist in relation to similar goods/services, but, this is more challenging and dependent on circumstances.

Why you should consider registering your trade mark in 2024

A common misconception among small business owners is that trade mark registration is the domain of big business and that it’s not something they need to invest in. I actually believe it is often more important for smaller or newer businesses to register their trade marks.

The reality is that the younger the business, the more vulnerable it is, and time is of the essence when it comes to safeguarding your valuable intellectual property. By establishing your brand’s rights early on, you’ll be giving your business the best protection against any competitors and the best chance of success. Particularly, as noted above, registering a trade mark gives you the right to use that trade mark. Registering a business name or company name does not provide that right. I see it is kind of like an insurance policy for your brand.

There are also many stories of businesses that have been forced to stop trading because they are using a mark (such as a logo or brand name) that is infringing on another trader’s registration. So, even if you have an established brand that is not yet protected by trade mark registration, now’s the time to put those safeguards in place.

In summary, if you’re planning on starting a new business in 2024, launching a new product or service, broadening your trading horizons, selling your small business, attracting investors or ensuring the continuing success of your established brand – you’ll be interested in these key advantages of trade mark registration:

Provides the right to use the trade mark
Provides enforceable legal rights
Can be an extremely valuable asset on your balance sheet
Can save a fortune in legal expenses
The R symbol can be used when you have received a Certificate of Registration from IP Australia. It sends a signal to your customers, clients, suppliers, distributors and potential investors that you are serious about protecting your brand. It also creates an impression of professionalism, credibility, authenticity and reliability.

A registered trade mark is also a tradeable/sellable asset, which makes it an added attraction to investors or potential buyers. You can also authorise another party to use that trade mark (ie through a licensing agreement).

So, if this is the year that you aim to sell your business or secure additional funding for growth and expansion, it’s best to start the process with a registered trade mark on your balance sheet.

Why it is so important for small businesses to have an IP protection strategy

Australia operates a ‘first-to-use’ system as opposed to a ‘first-to-file’ one. Whilst this does mean that the first user of a brand for certain goods/services in Australia will have some rights, even if a copycat later files a trade mark application, it does create headaches if someone gets into the trade mark system first, so it is really important to file your application before another business files an application (or starts using a similar name).

Another point to note is that your Australian registration only applies to trade in Australia. If you intend to conduct business overseas, you will need to file applications for trade mark registration in the countries in which you intend trading. There are systems that allow for single international registrations to be filed, but, ultimately, you do need to nominate the countries in which you wish to protect your brand.

At face value, the online application process through IP Australia is straightforward, but the world of trade marks is complex and ever-changing and any mistakes or omissions during the application process can be costly in terms of time and money. It is important to get things right the first time. Enlisting the services of an experienced trade marks’ attorney is an excellent business decision – and it can be a surprisingly affordable one too.

Given the pace of change in technology, globalisation and the fiercely competitive business landscape, 2024 is the year to protect your intellectual property and add value to your balance sheet by registering your trade mark.

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