Mistakes to Avoid When Launching Your New Brand
One of the biggest mistakes a business owner can make when launching their new business is failing to protect their brand. A distinctive brand image is an essential part of a business since it allows consumers to differentiate your business from competitors. This article focuses on:
- how trade marks can protect your business’ brand; and
- five common mistakes to avoid when applying for trade mark protection.
Trade Marks: What Can They Protect?
Trade mark owners have the exclusive right to use and sell their registered trade mark. There is a common misconception that trade marks are just business logos. Instead, trade marks are a type of intellectual property that can protect a range of features essential to your business’ identity, including:
- your business name;
- your business slogan; or
- a distinctive colour scheme used by your business.
Your business can then use these trade marks when marketing its goods and services, ensuring that your business brand is protected and distinguishable from competitors.
Mistake #1: Registering Your Business Name vs. Registering Your Trade Mark
The legal obligation to register your business name is separate from the process of protecting your business name via trade mark registration. Even though your business name cannot be the same as an existing business, registering your business name does not give you the exclusive right to use the name. Once you trade mark your business name, you gain intellectual property rights for the business name.
Mistake #2: The Difference Between ‘™’ & ‘®’
A product or service labelled with the ‘™’ symbol means that an unregistered trade mark protects it. This means that the business owner has not registered the trade mark but intends to inform potential infringers that the phrase or logo serves as a unique identifier of their good or service. Businesses often use unregistered trade marks when they:
- have just created a new product or service; or
- are in the process of registering a trade mark for this new product or service.
However, an unregistered trade mark is not fully protected and can lead to complex legal proceedings when infringed upon. Instead, you should apply for a registered trade mark for more comprehensive legal protection. A registered trade mark will carry the symbol ‘®’ and gives your business the exclusive right to use, license and sell the trade mark for 10 years from its filing date. You must register these trade marks with IP Australia.
Mistake #3: Not Checking the Trade Mark Register
Similarly to how a business cannot operate under the same name as another business, a business cannot apply for a trade mark that another business has registered. The two main criteria for trade mark registration are that your trade mark is:
- distinctive, or not used commonly as a phrase or logo; and
- available for registration.
Before applying to register your trade mark, you should check the Australian Trade Marks Search. This is to avoid the potential of IP Australia rejecting your application because it does not fulfil the above criteria.
However, you must note that trade mark registration will only protect the class of goods and services detailed in your application. This means that other businesses could use the same or a similar trademark for their goods or services in a non-competing sector.
Mistake #4: Registering Under the Wrong Class
Your trade mark application connects to the specific goods or services your business provides. As a result of this, trade mark protection will only include the class of goods and services specified in the application. The goods and services you provide may fall under numerous classes. For example, a ‘computer program’ falls under four different classes in the Trade Mark Search.
Once you submit your application, it is impossible to expand the list of classes specified, and you will likely have to submit another application. Therefore, it is important to search the picklist and ensure that you list all of the classes that your goods and services fall under in your application.
Mistake #5: Not Maintaining Your Trade Mark
Trade mark owners who do not use their trade mark risk losing it. If a registered trade mark is unused in the previous three years, competitors can file a non-use application within three years after the date of trade mark registration. To avoid losing your registered trade mark, you should:
- display the ‘®’ symbol on the trade marked good or service;
- consider licencing or franchising your trade mark; and
- ensure that you renew your trade mark within 12 months of the expiry date.
When renewing your trade mark, it is important to note that trade mark protection lasts 10 years from the filing date.
When launching your new brand, it is important to consider ways to protect your business’ identity through trade mark registration. Trade mark owners have the exclusive right to use, licence and sell their marks. This can help a new business protect their unique identity and distinguish themselves from other competitors. If you need further legal assistance with trade marks, our experienced trade mark lawyers can assist. Contact 1300 657 423 or complete the form on this page.
Frequently Asked Questions
It is best to take measures to protect your new brand earlier rather than later. You should check the Trade Mark Register before you even begin to register your business so that you are aware of the potential protections available to you.
The cost for registering your trade mark will depend on how you apply for the trade mark and whether you are applying for one or a series of trade marks. Trademark registration can cost between $250 and $600, not including renewal fees.
When it comes to protecting your brand, trade mark protection is more suitable. Copyright usually protects original materials such as novels, photographs and computer software from being copied or communicated by another without your permission.