Issues With Having a Common Brand Name When Registering a Trade Mark
Emily Young
With branding being linked to reputation and popularity, your brand is ultimately the key to success for many businesses. However, having a unique brand name does more than just help you stand out from competitors. Having a unique brand name is a requirement if you wish to register a trade mark. This article will take you through what a trade mark is, why you should register trade marks for your brand and the issues with having a common brand name when registering a trade mark.
What is a Trade Mark?
A trade mark is a form of intellectual property (IP) protection that protects your business’ intangible assets. Your trade mark might take any number of forms, including:
- business name;
- logo;
- slogan;
- colours;
- phrase;
- song; or
- combination of the above.
Having a registered trade mark over your assets will ensure you have exclusive rights to the use of your trade mark.
Why Register a Trade Mark?
Registering a trade mark has a range of advantages that make the process a worthy time and financial investment. Overall, a trade mark registration will give you the exclusive rights to use and commercialise your trade mark, allowing you to prevent others from using your trade mark without your consent. A trade mark registration can also help you draw in prospective investors to your business, as a robust portfolio of trade marks can help demonstrate to investors that you take your business and its growth and longevity seriously.
Trade mark registrations also help to avoid legal disputes. This is because, through the process of registering your trade mark, you will undergo a trade mark search, which will identify if you are infringing on someone else’s trade marks. Trade marks also help you develop your reputation, as a consistent and distinctive brand will help consumers familiarise themselves with your business and its goods and services offerings.
Issues With Having a Common Brand Name
If you have a common brand name, there are several barriers you will encounter when registering a trade mark and with enforcing your trade mark rights.
1. Legal Requirement
Firstly, having a distinctive trade mark is a legal requirement. If your brand name is a term in common use in your industry, it is unlikely to meet this distinctiveness requirement. If your trade mark does not meet these requirements, you will not be eligible for registration. The purpose of a trade mark is to distinguish your goods and services from that of your competitors. If your trade mark is too similar to terms being used by others in the same industry, it is fundamentally at odds with the purpose of a trade mark.
2. Objections
Secondly, even where IP Australia considers your trade mark meets the legal requirements, your competitors might not agree. As part of the registration process, your trade mark will be publicly advertised and open to opposition from third parties. If your brand name is common or similar to other existing trade marks, numerous businesses may object to your trade mark. This could result in your application ultimately being unsuccessful.
3. Enforcement
Finally, even if your trade mark is registered, having a common brand name can sometimes make it difficult to enforce your trade mark rights. For example, it can be difficult to enforce your rights against a third party who is simply using a similar term descriptively, or against parties that have been using similar trade marks for a number of years (perhaps even before you). Generally, it is more likely that disputes will arise where your brand name is common. Therefore, remaining vigilant and enforcing your rights can cost you both time and money.
Other Disadvantages of Having a Common Brand Name
As well as the disadvantages of having a common brand name for trade mark registration purposes, there are a number of other downsides.
Firstly, a more distinctive brand name is an excellent marketing tool. This is because a unique brand name will stand out amongst your competitors, ensuring that potential customers do not confuse your brand with others in the same industry.
Secondly, a more distinctive brand name will help build your brand reputation over time. It is important not to underestimate the value of your intangible assets. With distinctive branding and a strong reputation, the overall value of your business will increase substantially over time.
Key Takeaways
Having a unique brand name does more than just help you stand out from competitors – it is a requirement if you wish to register a trade mark for your business. There are a number of issues that arise from having a common brand name when registering a trade mark. This includes difficulties with:
- meeting the legal requirements for trade mark registration;
- your trade mark being objected to by third parties; and
- enforcing your trade mark rights.
If you need assistance registering a trade mark in Australia, our experienced trade mark lawyers can help. You can get in touch with them by calling 1300 657 423.
Frequently Asked Questions
Registering a trade mark has a range of advantages that make the process a worthy time and financial investment. Overall, a trade mark registration will give you the exclusive rights to the use and commercialisation of your trade mark, allowing you to prevent others from using your trade mark without your consent. By extension, a trade mark is also an excellent marketing tool.
If you have a common brand name, there are a number of barriers you may encounter when registering a trade mark and with enforcing your trade mark rights. This includes difficulties with meeting the legal requirements for trade mark registration, your trade mark being objected to by third parties, and enforcing your trade mark rights.