Can I Trade Mark a Service?
If you have established a business and are looking to obtain trade mark protection, you may be wondering if you can trade mark your service. To help you better understand your trade mark options, this article will take you through whether you can trade mark a service.
What Is a Trade Mark?
A trade mark is one type of intellectual property (IP) protection. It allows you to distinguish elements of your brand from all of your competitors and help you stand out in the market. A trade mark acts as both legal protection and a marketing tool that helps increase the value of your business assets.
Trade marks can take many forms, and might be a:
- image; or
- any combination of the above.
Noting the above examples of trade mark forms, a trade mark is a sign relating to the branding of your business as opposed to the function of your business itself.
Can I Trade Mark a Service?
While a trade mark is a useful tool to have, it is limited to protection over the elements of your brand. This means although you will be able to trade mark the brand associated with your service, you will not be able to trade mark the service itself.
While a trade mark cannot protect your service from being stolen by others, it can prevent others from stealing your brand. From a marketing perspective, this is just as important.
Trade Mark Classes
When applying for a trade mark, you will need to select one or more trade mark classes. Trade mark classes refer to the different categories available for trade mark registration. There are 45 classes available for registration – 11 of which are dedicated to services. There is an outline of the trade mark classes relating to services in the table below:
|Class 35||Advertising and business management and administration services|
|Class 36||Financial, insurance and real estate services|
|Class 37||Building construction services|
|Class 38||Telecommunications services|
|Class 39||Transport services|
|Class 40||Treatment of materials|
|Class 41||Education and sporting services|
|Class 42||Scientific and technological services|
|Class 43||Food and beverage services|
|Class 44||Medical and veterinary services|
|Class 45||Legal and security services|
Trade Mark Application
The trade mark application process for a service is the same as all other trade mark applications. First, you will need to choose your trade mark before nominating the relevant classes of services you wish to protect your trade mark under. Then, you will need to ensure your trade mark is available for use by conducting a trade mark search. After that, you will be able to submit a trade mark application for approval by IP Australia. If successful, your trade mark will be placed on the trade mark register.
Other Forms of Trade Mark Protection
If you want to protect your service itself and not the associated brand, you will likely need to seek a different form of trade mark protection. However, this will require your service to be sufficiently original.
For example, a patent is another type of IP protection you can seek. To be eligible to file a patent, your service will need to create a function sufficiently original. A patent over your service will give you exclusive rights to the use and commercialisation of your invention. It is important to note that the threshold for obtaining a patent is very high and largely reserved for novel inventions.
It is possible to seek a trade mark over your service. However, this form of legal protection applies only to the brand of your service as opposed to the service itself. To obtain a trade mark for your service, you will need to:
- choose your trade mark;
- select the relevant trade mark classes;
- check your trade mark is available for use; and
- submit your trade mark application.
Frequently Asked Questions
A trade mark is one type of IP protection that enables you to distinguish elements of your brand from all of your competitors. This will both help you stand out in the market and deter competitor businesses from imitating your brand and infringing on your trade mark. In addition, if someone does steal your trade mark, as someone with exclusive rights to your trade mark, you will be able to enforce your trade mark rights to prevent them from doing so.
Trade marks are limited to protection over the brand of your business. While it is possible to trade mark the branding associated with your trade mark, it is not possible to trade mark the service itself. If you have invented a unique and original service, it may be possible to obtain a patent over your service. However, the standard for obtaining a threshold is very high, and your service must be sufficiently unique.