What is a trademark and why register?

If you are in business then the chances are you have at least one trademark.

A trademark, by definition, is any sign that you use to distinguish your products and/or services from those of other people. A ‘sign’ in this context could be a name, slogan, logo, image, colour, shape, scent or even a sound (or a combination of these things). Most often, trademarks are names or logos.

Given the definition, a trademark exists whether you choose to register it or not. A business name can be a trademark if it is capable of distinguishing your products or services from those of other people, as is a brand name or corporate logo. Registering these things as your trademarks, however, ensures you are recognised as the owner – and are protected in your use and promotion of these things for the particular goods or services your business deals in.

Without trademark registration, you are vulnerable to infringing existing rights, or being powerless in stopping others from using the same or similar names and logos.

Legal rights of Trademark Registration

1. The right to use the name or logo, in connection with the goods or services nominated; a business name, company name or similar does not provide this right. Registration of a business/company name could inadvertently infringe the existing rights of a trademark holder. At the very least, trademark searches should be carried out;
2. The right to authorise the use of the name or logo in connection with the goods or services. This would be required if you wish to franchise your business, or generally license the use of your name/logo to someone else. You should not be providing someone else with permission to use your name/logo without trademark registration safely secured or you could be giving them permission to infringe someone else’s rights!
3. The right to instigate action against people found to be infringing your rights. Without trademark registration in place, you are quite limited in action available to stop people from copying your names or logos – or from using names/logos very similar to your own. Having the trademark registered will give you the legal legs to stand on in preventing such confusing activity from occurring.

Non-legal Rights of Trademark Registration

Whilst not ‘legal rights’ per se, registered trademarks provide further benefits to you/your business, including:

• Higher sale value should you ever wish to sell your business. Trademarks are saleable assets, just as a physical or tangible asset is; You would be selling peace of mind to a new owner, as well as goodwill attached to your brand.

• Appearance of professionalism and longevity. Most people are familiar with trademark symbols of ™ and ®. Being able to promote your business name/logo alongside the ® symbol creates the impression in your customers’ minds that you are serious about your business and intend to be around for a while.

• Additional income stream for your business. As trademark registration allows you to license use of the trademark to other people, you can generate further income through licensing fees (royalties);

• Get ahead overseas. By registering your trademark in Australia, you are afforded a couple of benefits should you wish to also protect your mark overseas – such as the ability to utilise the Madrid Protocol for simple international protection process, and also utilise the priority period available to you based on your Australian application.