This chapter is an extract from LegalVision’s Online Business Manual. Download the full guide here.
Protecting your Brand: Part I
Brands like Apple, Nike and Lululemon are instantly recognisable — we know from their name and logo what they sell. Your brand is your most valuable asset and will be a key driver in attracting and maintaining customer engagement with your online business. You will need to take steps to actively protect your brand.
Business Name and Logo
A trade mark is a sign used to distinguish one person’s goods or services from those of others. A trade mark exists whether it is registered or not, but registration provides you with stronger rights that you would not otherwise have. For example, it is easier to license your registered trade mark and take action against someone who infringes your mark.
A business name and logo are two different trade marks. This means you will submit two applications to IP Australia and pay two sets of fees.
When you register a word trade mark, for example, your business name, you are protecting the word or phrase. If you choose to register your logo, you are protecting the image and its overall impression, taking into account the shape, orientation and configuration. If your logo is just a stylistic representation of your name, then you may be sufficiently protected by registering the name or phrase only as a trade mark. However, if your logo has a distinctive appearance that is key to your branding, you should also consider registering the image to ensure maximum protection of your intellectual property.
To protect your brand, you can’t register generic words that are commonly used to describe a type of business such as “online grocery store”. You are also prohibited from registering geographical names, the names of international organisations and offensive marks. Once you’ve picked a name that you like, and that isn’t in use or registered by someone else, apply for the trade mark.
Tip: What’s The Difference Between Registering a Business Name and a Trade Mark?
Different legal rights attach to a business name and trade mark, and it’s important for business owners to know what each type of registration protects. Registering a business name simply shows that you are operating your business under that name.
On the other hand, registering a trade mark gives you the exclusive right to use the name and stop others from trading under the same name. It gives you the legal right to protect your brand.
Trade Mark Registration Process
- File application with IP Australia: Submit an application to IP Australia that includes your trade mark details, ownership and the types of good and services associated with your trade mark.
- Examination (Approximately 13 weeks): IP Australia reviews your application to see if it meets the requirements. They will compare your trade mark to pending and registered trade marks.
- Acceptance: If your trade mark meets the requirements, IP Australia sends you a Notice of Acceptance, informing you that your trade mark has been approved.
- Advertisement (Approximately 5 months): IP Australia publishes the details of your trade mark in the Trade Marks Journal.
- Opposition (Approximately 2 months): Once advertised, third parties have the opportunity to oppose your trade mark if they believe it should not be registered.
- Registration: IP Australia will update the status of your trade mark on the register. It will remain registered for ten years from your filing date.
Enforcing Your Trade Mark Rights
After registering your trade mark, it is important to monitor trade mark infringement by searching for identical or similar trade marks. Here are some tips on how to monitor for infringement.
Search for your trade mark online
A search of identical or similar words and images can help determine whether someone has infringed your trade mark (assuming it hasn’t been registered before yours!).
ASIC’s online database service allows you to search for businesses in Australia and find information on organisations and companies.
Use the Australian Trade Mark Search
Searching the Australian Trade Mark Search gives you an indication of whether an existing application or registered trade mark is similar to yours.
If you have any questions about protecting your business’ intellectual property, you can contact LegalVision’s online business lawyers by calling 1300 544 755 or filling out the form on this page.
This chapter is an extract from LegalVision’s Online Business Manual. Download the free 53-page manual which includes all chapters and features case studies from NAB, Deliveroo, Airtasker and HubSpot.
This manual covers all the essential topics you need to know about starting your online business, including setting up your online business, protecting your brand, growing your team and scaling your business.
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