When Can a Business Skip Trade Mark Registration?

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Table of Contents

• Benefits of Trade Mark Registration
• Do I Need to Register My Trade Mark?
• When Can a Business Skip a Trade Mark Registration?
• Key Takeaways
• Frequently Asked Questions

A trade mark is an excellent way to protect your brand. For instance, registering a trade mark gives you exclusive rights to use, license and sell your trade mark. This allows you to prevent others from using your trade mark without your consent. If you have a business, chances are you already have a trade mark, such as your business name or logo. Therefore, it is optional to register your trade mark. Although, there are many benefits of trade mark registration. This article will guide you through when a business can skip trade mark registration and when and why you should register your trade marks.

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Benefits of Trade Mark Registration

A trade mark refers to any sign that distinguishes one business from another. As a form of intellectual property (IP), a trade mark is an essential asset for any business.

Trade marks can take many forms and may include your business:

• name;
• logo;
• packaging;
• colours;
• sounds;
• scents; or
• slogan.

A trade mark gives you the right to use, sell and license your trade mark. This exclusivity can be hugely valuable for any business size. It is also a valuable marketing tool and can build the value of your business.

Do I Need to Register My Trade Mark?

Although you do not have to register your trade mark to assert rights to it, registering it has many benefits.  For example, if someone infringes your trade mark, you can use your registration as evidence of your trade mark rights.

On the other hand, if your trade mark is registered, it is usually easier to demonstrate your rights to your trade mark. Over time, this can become more time-consuming and expensive.

A registered trade mark also lets you use the registered trade mark symbol (®). This symbol, which indicates that you have a registered trade mark, can only be used when your trade mark is officially registered, providing more incentive to register your trade mark. 

Essentially, registering a trade mark as early as possible will help you avoid expensive legal actions later.

When Can a Business Skip a Trade Mark Registration?

Although a trade mark will exist without registration, asserting rights over an unregistered trade mark is generally more challenging.

When enforcing an unregistered trade mark, you must establish that your trade mark:

• has a sufficient reputation in the market; and 
• is recognisable as your brand by consumers.

Whether your mark has a good reputation in the marketplace and is recognisable by consumers will largely depend on what evidence you can provide to support the same. 

Further, when enforcing your rights to an unregistered trade mark, you will need to demonstrate that the other party’s use amounts to misleading or deceptive conduct, or passing off.

Key Takeaways

Although a trade mark will exist even without registration, asserting rights in an unregistered trade mark is generally harder. When enforcing an unregistered trade mark, you have to prove that your mark:

• has gained a sufficient reputation in the market; and 
• is recognisable by consumers.

If you need assistance registering a trade mark for your business, 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 1800 532 904 or visit our membership page.

Frequently Asked Questions