Trade marks: what are they and what is the point?
What trade mark?
Trade marks are commercial and legal tools. They help businesses to distinguish their products from those of others in an often-crowded marketplace. Trade marks can be sounds, scents, words, pictures, colours, and more.
Why trade marks?
As a business owner, you have taken time to build up your operations, taking time to select and design the right product, fine-tune the manufacturing processes, secure the best suppliers, ensure that the retail operations work efficiently, whether through traditional shop fronts or online.
All that hard work, blood, sweat and tears will be for nothing if your excellent, and efficiently-produced product does not stand out from its rivals. What to do?
Distinctive ≠ descriptive
Choose a distinctive trade mark. We know, that’s easier said than done, but it is possible. Do not be tempted to pick a mark which describes your product, because it will be equally applicable to your competitors’ products. You will effectively be shooting yourself in the foot, as it will be difficult to distinguish your products from those of your competitors. That also means that descriptive marks are weak and hard to protect, and thus difficult to enforce if push comes to shove.
Choose your own adventure
Create your own trade mark. Do do not be enticed to borrow someone else’s trade mark, colour scheme or get-up. That other trade mark owner has taken the time to devise a mark, colour scheme or get-up to help distinguish their products. Accordingly, if you borrow their mark you are misappropriating their creativity and reputation that they have built up under their trade mark, which could result in financial damage to their business. If they find out, they may try to stop you, which will likely result in unwanted legal costs for your business. There’s an element of the Golden Rule, here: you would be justifiably upset if someone else took your trade mark to use for their business.
Register your trade mark early
Protect your trade mark by seeking registration at the earliest possible time. The first person to use a trade mark in Australia is the owner, but registration has real commercial benefits. Registration gives you instant nationwide rights in the mark, even if you’ve never used it. It also reduces the effort you’ll need to expend, and boosts your chances of victory, in an infringement battle.
Registration will therefore enable you to more easily exclude others from seeking to use your mark, and will generate further business for you.
Also, if you decide to sell your business the registration of your trade marks makes it easier to transfer the mark and reputation, and is likely to enhance the sale price.
Start a discussion with us. Come and discuss your options, obligation and cost-free, over coffee, or tea.
-by Helen Peachey, Senior Associate, Registered Trade Mark Attorney