4 Key Trade Mark Tips for Small Business Owners

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Table of Contents

• 1. Do Your Due Diligence
• 2. Be Distinctive, Not Descriptive
• 3. Register Your Trade Mark as Soon as Possible
• 4. Maintain, Monitor and Enforce Your Right
• Key Takeaways

If you are a small business owner, your trade mark will be an important asset that adds value to your business. Trade marks are used to distinguish your goods or services from other businesses and can be, for example:

• names;
• images; or
• slogans.

Subsequently, they increase your business’ brand identity and recognition by consumers. As the owner of a registered trade mark, you will have exclusive use of the mark in your industry, so it is important to know how to make the most of it. This article highlights some of the most important tips for small businesses on how to register your trade mark.

1. Do Your Due Diligence

When designing your trade mark, you should research the market before you apply. This ensures that you create a unique and distinctive brand. If your trade mark is unique within your industry, you can be confident that you are not infringing upon someone else’s trade mark rights. You should use IP Australia’s trade mark search function to look for similar marks within your industry.

However, if you do not conduct market research before applying for a trade mark, your trade mark may be too similar to one that already exists. Subsequently, IP Australia might reject your application, or another business might oppose your trade mark.

As IP Australia requires you to select the goods or services relevant to the trade mark, you should also be thinking about what your business is going to provide. Then, search IP Australia’s classification search to see which classes you should register your trade mark under.

2. Be Distinctive, Not Descriptive

IP Australia requires your trade mark to be distinctive from other brands. This means that your trade mark cannot merely describe its goods or services.

Having a unique brand that distinguishes your business from others adds value to your brand. This is especially important as your business grows.

A case involving Telstra highlighted the importance of distinguishable marks. In 2003, Telstra attempted to register the word mark ‘Yellow’ for its directories, the Yellow Pages. However, they were unsuccessful because the word did not distinguish the directories as being those of Telstra. Yellow had already become a common colour used to signify business directories. Therefore, IP Australia considered it to be merely descriptive.

3. Register Your Trade Mark as Soon as Possible

If you have a brand name or logo that is unique, applying for a trade mark as soon as possible is a great way to ensure that your brand is protected. Even though the registration process takes at least seven months, you are afforded protection from the date that you lodged your application once your mark has been registered.

It is essential that you apply to register your trade mark as soon as possible. This will limit the risk of a competitor obtaining the rights for your mark by filing before you. However, you must continually use your trade mark after it has been registered. This will ensure that a competitor cannot have your registration removed for non-use.

4. Maintain, Monitor and Enforce Your Right

A trade mark is only as valuable as how you use it. As the owner of the mark, you should:

• use the mark in relation to all of your goods or services to avoid competitors removing your trade marks; and  
• monitor the market for the substantially similar marks and be ready to enforce your mark against potential infringers.

In one case, a small business owner, Christian, had to stop trading after Nestle successfully sued him for trade mark infringement. In this case, Christian had begun selling vitamin products online called ‘A-Sashi’. However, the A-Sashi name was said to be deceptively similar to Nestle’s trade marked name of ‘Musashi’, which was used for their dietary supplements.

Key Takeaways

Registering a trade mark is a great way to build your business and ensure that it has the protection to grow. However, you should make sure that you have researched the market for existing brand names so that your trade mark is unique.

Furthermore, you should register a trade mark as soon as possible to gain priority over your competitors. Once your trade mark is registered, you need to use it and continually monitoring the market for potential infringements.

If you have any questions about registering a trade mark, our trade mark lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.