Starting a Business? Make Sure You are Not Infringing Someone Else’s Trade Mark!

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Table of Contents

• Do the Appropriate Searches
• International Trade Marks
• Maintain Records
• Conclusion

One of the exciting aspects of starting a new business is determining how you would like your customers to recognise your business through the use of a logo or a business name. Before you begin trading, you need to ensure that your business name is not infringing someone else’s trade mark. This article will step you through the appropriate searches to ensure that you can commence trading under your proposed new business name.

Do the Appropriate Searches

You can complete a number of searches that will limit the likelihood of infringement. The first search should be under the Australian Securities and Investment Commission’s (ASIC) business name register, where you can find all registered business names. ASIC also prevents the registration of business names that may be the same or too similar. The second search you should complete is through the Australian Trade Mark On-line Search System (ATMOSS). ATMOSS has a list of registered trade marks, including business names and logos. By doing the appropriate searches, you can be sure that the business name or logo that you wish to trade under is available.

International Trade Marks

The issue of international trade marks is a prominent one, especially as more and more businesses trade internationally. If your business is in more than one country or if it operates online, you may be reaching a global or multi-country marketplace. It is then critical to consider whether your business name or logo infringes trade marks that exist in other countries. To avoid accidently infringing on an already registered trade mark, you should firstly determine the countries in which you will be operating. Once you have identified which countries, you can perform the relevant searches and confirm whether there are any registered trade marks for your desired business name or logo.

Maintain Records

Another important tactic to ensure that you do not infringe another party’s trade mark is to maintain your records. These records include:

• when you began trading under a particular name or logo, 
• details of its creation, and 
• details of your permission to use. 

For example, if you have engaged a creative agency in assisting with the development of your business logo, it would be useful to receive details of their assignment of trade mark ownership to you. Your records would be especially helpful in the future if you were to receive a Notice of Trade Mark Infringement, as you can use them as evidence. 

Conclusion

If you are in the process of starting a new business, it is important to do your homework. You can help prevent someone taking legal action against you by spending time in the initial stages completing the relevant searches into business names and logos. 

It may happen that you are inadvertently using someone else’s trade mark, and that may be difficult to resolve if you have built up your business’ reputation under a specific business name or logo. Our team of specialist trade mark lawyers can assist in providing you with advice on the steps you would need to take to prevent trade mark infringement and to protect your business identity!