Can I Trade Mark an Image?
Emily Young
If you have worked hard to establish your business and build your brand, you may be looking for ways to protect it. One of the ways to do this is to obtain trade mark registration. Trade mark registration is one way to protect your business’ intellectual property (IP) and ensure your brand has sufficient protection against competitors. To help you better understand trade marks and the different options available, this article will take you through whether you can trade mark an image.
What Is a Trade Mark?
A trade mark is one form of IP protection that allows you to distinguish your brand from others. A trade mark acts as legal protection, giving you exclusive rights to your trade mark. These rights include enforcing your trade mark rights over others, preventing anyone from infringing on your trade mark.
Trade marks may take a number of forms, including a:
- word;
- phrase;
- song;
- image; or
- any combination of the above.
As long as a trade mark meets the legislative requirements of a trade mark, it will be eligible for registration as a trade mark. These requirements exclude the use of:
- descriptive words;
- commonly used words; or
- forbidden words.
Put simply, your brand asset must be distinctive to be considered a trade mark.
In addition to the legal benefits of a trade mark, there are also several marketing benefits. For example, trade marks can help you distinguish your brand and increase consumer familiarity with your business. In turn, this will increase the value of your brand assets.
Can I Trade Mark an Image?
If you use some distinctive elements as part of your brand, you will be able to register it as a trade mark. This may include using an image in your business’ logo along with the sale of your goods or services.
To be eligible for trade mark registration, your image will need to be unique. To ensure that your image is sufficiently original, you will need to check its availability for use. By conducting a trade mark search, such as by using IP Australia’s ATMOSS tool, you will be able to confirm this. In addition, trade marks already registered must not be exactly the same as your image or resemble your trade mark too closely.
After confirming that your trade mark is available for use, you will need to apply to IP Australia. This application will include:
- your business or personal details;
- a copy of your image; and
- an explanation of its intended use.
You will also need to pay the relevant application fees.
Copyright Protection
In addition to registering a trade mark for your image, your image may also qualify for copyright protection. Copyright is an automatically granted form of IP protection. Copyright protection is available for original works that demonstrate some type of original expression. This means that if your image is a unique design that you have created yourself, you will receive automatic copyright protection.
Copyright protection has several benefits, including exclusive economic rights to your image. This will prevent others from using your image for their own commercial benefit. For artistic works, copyright lasts for 70 years from the date of first publication.
Importantly, consider if your image is designed or photographed by someone else. In that case, the artist may have copyright over the design. To avoid this, an agreement should be made with the artist to outline who will have ownership.
Key Takeaways
Registering a trade mark for your image is an excellent way to protect your brand. This is particularly important if you use a logo as part of your business’ brand. To obtain a trade mark for your image, you will need to:
- ensure your image meets the legislative requirements of a trade mark;
- check that your image is available for use; and
- submit your trade mark application.
If you need assistance registering a trade mark for your image, contact our experienced trade mark lawyers on 1300 657 423.
Frequently Asked Questions
A trade mark is one form of IP protection that provides a way for you to distinguish your brand from others. A trade mark acts as legal protection, giving you exclusive rights to your trade mark. There are also several marketing benefits to a trade mark. For example, a trade mark helps to distinguish your brand and enhance your business’ reputation.
Trade marks can take many forms, including an image. If you use an image in your business’ logo as part of the sale of your goods or services, it will be eligible for trade mark registration. In addition, your image may also qualify for copyright protection if it is unique.