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If you are a business owner, you may wonder whether you should register your business name or logo as a registered trade mark, a type of intellectual property protection. Registering a trade mark is a great way to ensure that your business’ brand is protected. While it is always best to register both your business name or logo, there are situations where you may need to choose. This article explains what you should consider when registering a trade mark and the benefits of each type of trade mark.

What Can I Register as a Trade Mark?

A trade mark is a sign, symbol or word that represents your business and your brand. It distinguishes your goods and services from your competitors and offers a strong form of brand protection. 

The first step is to decide what you want to register as a trade mark. Most small businesses register their business names and logos as their trade marks. For some, that is only a starting point. For others, that will serve adequate protection for their business and brand.

You can also register different elements of your business or brand as a trade mark. For example, this might include a unique name of a product or service you offer, a slogan or a jingle. 

Different Types of Protection

Business names and logos are usually registered as separate trade marks. In Australia, several different types of trade marks are relevant to registering a business name or logo:

Type of Trade Mark

Description

Protection 

Word mark

Includes registration of a business name

Protects the name itself, not any particular font or styling.

Device mark

A mark composed of an image or graphic

Protects the overall impression of the image. This includes the combination of shape, orientation and style.

Composite mark

A mark that contains both a graphic and at least one word

The same as a device mark but includes the words on the image. Importantly, the words themselves do not have separate trade mark protection in isolation.

What If I Cannot Register my Business Name as a Trade Mark?

IP Australia might reject your trade mark if there is an identical or very similar trade mark already on the register. In this case, you should seek legal advice, as you may need to consider whether you should change your name. If you do not change your trade mark, it may be infringing on someone else’s trade mark rights. There are various exceptions to this, so it is best to speak to a trade mark specialist if you have any concerns.

IP Australia may also reject your trade mark if it cannot distinguish your goods or services from that of another business. Essentially, IP Australia will object if they believe that the trade mark is too generic or descriptive. In this situation, you may wish to register your logo rather than your name. If you have a logo that constitutes a device mark or a composite mark, you may find more success registering the trade mark. 

However, you may be able to overcome both of the objections mentioned above if you can demonstrate evidence of use of your trade mark. Here, you must establish that your business has been using the name over a long period to establish your brand presence. 

What If Both are Available, But I Can Only Afford One?

The process of registering trade marks can get expensive. Therefore, businesses that are starting out sometimes choose to apply for only one trade mark because of cost. If both a word mark and a logo are possible options, the decision is up to you. You should consider the differences between the two protections as set out above. Also, ensure that no one else is using your name or logo.

Note that some legal services can help you manage costs. For example, LegalVision’s membership includes unlimited trade mark applications (excluding official government fees).

It is important to note that registering your business with ASIC does not mean your business name is protected from use as a trade mark by your competitors. If your business name is the most important brand asset you have, you should consider registering your business name as a trade mark. As stated above, a word mark would protect the name itself in all fonts and styles. 

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How Do Consumers Recognise and Identify Your Brand?

Many logos incorporate a graphic element and a business name. Where the business name forms a large part of the logo’s overall impression, registering your business name will provide some protection over a composite trade mark or the logo as a whole.

Most businesses begin with registering their business name and register their logo later. However, registering both straight away as a preventative measure outweighs the potential costs of any trouble that may arise in the future if the marks are not registered.

Key Takeaways

If you are a new business owner, you should consider whether you wish to register your business name or logo. There are three key types of trade marks that protect business names and logos:

  • word marks;
  • device marks; and
  • composite marks.

If you need help with trade mark registration, our experienced 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.

Frequently Asked Questions

What is the main difference between registering a name or logo as a trade mark?

Your business name is a word mark. Your logo is either a device mark or composite mark. A word mark protects the word itself in any font or colour. A device mark and a composite mark protect the image’s overall impression (including the orientation, shape and style) and not just the words within the image.

What should I register as a trade mark if I own a small to medium-sized business?

Most small businesses apply to register their business name and logo as a trade mark. Registering your business name and logo as two separate trade marks will protect your brand. It will also ensure your competitors cannot make unauthorised use of your trade mark, as this would infringe on your registered rights. If you are unsure what mark to register for your business, you should discuss your options with a trade mark lawyer.

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