Often, it is not until after launching a new business or new product that a business owner thinks about protecting their brand… and sometimes it can be too late.
You ask your IP lawyer to register a Trade Mark and they say one of two things:
- there is already a prior registered Trade Mark; or
- The brand is too descriptive.
IP Australia have become increasingly strict about what they allow on the register and whilst there are ways to overcome IP Australia’s issues (requiring lengthy statutory declarations with extensive use of the brand) the most simple way to ensure your brand is capable of Trade Mark protection is to ensure you create a name, icon or logo that is:
- New (not similar to another brand); and
- Is not descriptive.
For example, if you are launching a real estate agency, think twice before calling it ‘low commission real estate agents’ because that is descriptive of your business. We understand SEO is important and it would be much easier for people to find you on google if your business is called ‘low commission real estate agents’, however you will never own that brand. Other businesses will be able to use the same business name and you would have very little rights to stop them.
It is also important to engage expert Trademark Lawyers to ensure that your name is not already owned by another business, somewhere else in Australia. A comprehensive Trade Mark search report Partnership will ensure your proposed brand is not a prior registered Trade Mark, and is not showing up on social media or online in Australia as being used by a competitor. If a competitor is using the name before you (even if they do not have a Trade Mark) they will have grounds to oppose your Trade Mark application and, worse, grounds to bring an action against you for misleading and deceptive conduct and passing off.
As a law firm that assists many clients with Australian and International trade mark registrations, we feel for some clients who spend time and considerable resources developing a brand, only to discover they may need to undertake a complete rebrand due to the issues above.
Even more tricky is when a client has a brand they want to take offshore and obtain global IP protection. There are numerous cases, of businesses who have had to re-brand in certain jurisdictions because their original name was already a Trade Mark in that country.
In short, a Trade Mark is a stitch in time that saves nine.
If you have any queries about Trade Mark registrations in Australia or internationally or if you require a trade mark lawyer to send a cease and desist letter or respond to a cease and desist letter contact the experts at IP Partnership. Our Clients are located all over Australia and Internationally.
