So you’ve started the exciting journey of branding your business. You’ll probably want a brand name and logo that speaks for itself or the products/services that you are selling and that will resonate with your target market.
You may have even done some preliminary searches to see whether the names you like are available as domain names or on various social media platforms.
But before you go ahead and purchase a domain name, register a business name, or spend a lot of money on designing and printing marketing materials, it is extremely important to check whether your desired brand name or logo is available to register as a trade mark.
Why is it important to register your trade mark?
A registered trade mark gives you the right to enforce your intellectual property rights and prevent others from using your brand or logo without your permission. It is also one of your business’ most valuable assets and its value increases as your business grows.
What to consider from a trade mark perspective?
When choosing a trade mark that is likely to be successfully registered, here are 4 things that you’ll want to think about.
- Does your brand name or logo identify your very own unique business and product/service offering? If your trade mark is too generic or descriptive, it may not distinguish your products and/or services from those of other businesses. For example, if you are making artisan chocolates, a trade mark “Hand Made Chocolate” is unlikely to be registered or capable of protection against competitors who want to use this term to describe their chocolates.
- Ensure that your chosen trade mark is not too similar to an existing registered or unregistered trade mark used in respect of similar goods and/or services as yours. This will jeopardise your ability to successfully register the trade mark as IP Australia will reject trade marks that are similar to trade marks already on the Australian Trade Mark Search database. For example, IP Australia will likely raise objections to your trade mark application if you try to register the mark NAPPYSAN for soap powder. This is because it would be very similar to the registered trade mark NAPISAN which is registered for detergents.
Using the trade mark (e.g., NAPPYSAN) might also land you in hot water from a legal perspective as it may constitute both trade mark infringement and be a breach of the Australian Consumer Law. Because of this, it is important to check the availability of your desired trade mark both on the IP Australia Register and in the market generally.
- Also, keep in mind that some trade marks are prohibited in Australia. For example, the Olympic Rings and the words RED CROSS may not be registered as trade marks. Any scandalous, offensive, misleading or deceptive marks are also generally not registrable. For example, IP Australia will raise objections to your trade mark application if you try to register the mark KADARSHIAN for swimwear (without permission from the celebrity to do so). This is because it would be deceptive to consumers who may think you have an affiliation with Kim Kadarshian.
- All great things start small and if you have dreams of overseas expansion one day, or if you want to sell your products overseas, you should also consider whether your brand name or logo is available, as a trade mark, in those countries of interest. A trade mark that is available in Australia does not mean it is automatically available overseas. If it is not available overseas, you may end up needing to re-brand your products and/or services sold in those countries (and incurring further costs) to avoid infringing someone else’s trade mark in those countries.
How can we help you?
Many clients have come to us because they did not consider the above when they first started their businesses and ran into difficulties later. We understand that starting and running a business is a long-term plan. So contact us at Level Up Legal to discuss your brand name and/or logo and your business plans. We can help you select and secure your dream trade mark, in Australia and overseas.
