So you think that simply having a business name or company name means your brand name is protected? Think again…
One of the most frequent issues I have seen in the area of trademarks comes from the misconception that simply registering your business name, or having a company name, will give you rights over that name. Time and time again clients have come to me to finally register a trade mark that they have been using for many years, only to find that someone else has gotten in first.
The reality is that if someone else has already registered a mark similar to yours, for the similar sorts of goods/services you deal in, one of 3 things will happen:
- You may be prevented from registering your mark, therefore leaving you with a company name or brand name that can’t be protected
- You may have to go through a difficult process of proving that you had used the mark first, or for a sufficient period of time
- You may have to try to negotiate a deal with your competitor so that they will allow you to keep using your name
Simply having a business name, company name or domain name registration is not enough.
So why might you want a trademark registration anyway?
Clients come to me to register their marks for many reasons.
Sometimes they come to me because their mate in passing mentioned that their company name registration on its own won’t protect the brand – and they want my reassurance that they are fine (which sadly I cant give)!
Sometimes they come to me because they are gearing their business up for a sale in the future, and want to ensure they have their bases covered by proving their “ownership” of the brand that they are hoping to sell, demonstrated by their national trademark registration certificate.
Sometimes they come to me because they have noticed a competitor in the market using a name very similar to theirs, causing potential confusion in the marketplace (and essentially, giving the new competitor a free ride on their marketing spend).
Sometimes they come to me because they have received a notice from another trader claiming to have a better right to their name, and demanding that our clients therefore change their name.
And sometimes they come to me because they just want the protection of knowing that their asset is secured.
Whatever the reason, when I have to deliver the news that you may not be able to get your trademark registered because someone got in first, the reception I get is not pretty.
So why would you care if your trademark is registered or not?
- Protection from competitors using your name.
When you have a trademark registration, it is far easier and cheaper to stop other people using that name. If you don’t have a registration, you first have to prove your rights to that name, which can be a difficult and expensive process.
- Protecting your business from being accused of infringing another company’s mark.
When you have a trademark registration, you have written proof of your registered rights in a name, and this alone is quite often enough to stop any issues before they start.
- “Insurance” for your marketing spend.
If you are spending money on marketing your company, you are essentially creating market recognition of that name. It is important then that you have taken the small steps needed to protect that name from others in the marketplace using it to their advantage
- Recording your asset in the balance sheet.
Your name/trademark is generally so closely attached to the goodwill of the business, that in fact it is quite often one of the most valuable assets that your business has. By registering your trademark you are creating it as a separate asset that can be reflected in the accounts of the company. Which is great news if you are looking to sell or get finance.
- Open your business up to the opportunities of licensing.
Once your trademark is registered, many new doors are open in relation to how you can now deal with your mark. You can licence it to others and make licence fees/royalties, you can hold it separately in an asset holding entity, you can do many other great things.
But really, the simple things are often the best, and the best thing that a trademark registration brings is peace of mind that you have protected that important business asset.
Timing
The earlier you get your trademark registration, the better. Trademark registrations are awarded on a first come, first served basis. And once your competitor has a trademark registration that they shouldn’t have had, it’s a tough job to get it off them. In fact, the only way to strip them of that ownership is to take your matter to the Federal Court, which is likely to cost somewhere near 6 figures, if not more.
Costs
Trademark registrations on the other hand are surprisingly inexpensive – particularly in comparison to the peace of mind that they provide. In fact, many businesses’ trademark costs (for a trademark that lasts indefinitely – upon the payment of a small renewal fee every 10 years) are less than the cost of insurance for their company car (that of course needs to be paid again the next year). Most of us don’t think twice about insuring our car every year, yet many business owners just don’t take the same caution with their brand and goodwill. Sobering thought isn’t it!
Perhaps the real question for businesses considering trademark protection is not whether they should register their brand, but can they afford not to…
Trademark protection services
If you would like advice about registering your trademark, send us an email enquiry to [email protected] and we will organise a time to talk with you about your mark to answer all of the questions you might have.
Disclaimer: The material contained on this website is provided for general information purposes only and does not constitute legal advice. You should not depend upon any information appearing on this website without seeking legal advice. We do not guarantee that the contents of this website will be accurate, complete or up-to-date.
