17th August, 2023
Branding is critical for your business as it helps attract customers and distinguishes you from your competitors.
When establishing your brand, it’s important to check that your name, logo or other element of branding isn’t already trade marked by someone else.
Trade mark infringement is the unauthorised use of a registered trade mark and can result in costly legal fees and a need to rebrand. Here’s what you should know and some key steps you can take to avoid trade mark infringement.
A trade mark protects your company’s unique brand, product or service and helps build a memorable customer experience that can generate repeat business.
The most common trade marks are brand names, logos and distinctive phrases, but they can also be a word, letter, colour, sound, smell, picture, movement, aspect of packaging or any combination of these.
If you register a trade mark with IP Australia, the government agency that administers intellectual property rights, you’ll gain:
No business wants to face the cost of a rebrand or infringement action, but the reality is that it can happen, and the risks are real. Research has found:
A lot can be learned from the experience of Sydney restaurant – Fat Duck, which opened its doors in Sydney in 2011.
Shortly after opening, the restaurant was required to relinquish their name and rebrand their business because celebrity chef, Heston Blumenthal, filed an application for trade mark protection.
Intending to reserve the Fat Duck name for his chain of fine dining restaurants, Heston’s company filed a claim in the Federal Court of Australia and won.
This story demonstrates why you should check your intended brand early, and how, if you haven’t protected your name or logo against competitors, you may risk losing the rights to it.
Take the steps below to make sure you’re protecting your brand.
It’s important to search through existing trade marks to:
You can use IP Australia’s free tool TM Checker to search registered trade marks. An initial check only takes a few minutes and is free.
TM Checker will show you anything already registered that might be like your name, phrase or logo in the proposed classes you’ll use your trade mark for.
If your check confirms your proposed trade mark is available, you can easily apply to register it at the same time.
If you decide to apply, it can cost as little as $330. Watch the short video above for guidance on using TM Checker.
Once you’ve completed a search and determined that your proposed trade mark is available, consider registering your own trade mark.
As mentioned, you can apply through TM Checker at the same time as your check, or return to do it later.
Be sure to avoid these common mistakes when registering your trade mark:
Apart from the peace of mind that comes with legally protecting your brand, research by IP Australia found these other important and compelling potential benefits:
If you’d like to read more, IP Australia has loads of information for small businesses about trade marks and other important intellectual property rights.