When Are My Trade Mark Rights Effective?
Emily Young
As a business owner, you must understand intellectual property rights, including those that cover trade marks. For many businesses, branding is one of the essential elements to success – after all, branding helps people find, identify and remember your company. One such way to protect your brand is through trade mark registration. This article will outline a trade mark and at what point your trade mark rights are effective.
What is a Trade Mark?
A trade mark is a form of intellectual property (IP) protection that you should consider protecting your business. A trade mark enables you to distinguish elements of your brand from your competitors. As a result, this helps you stand out in a competitive market.
Ultimately, trade mark registration serves as both legal protection and a valuable marketing tool that helps increase the value of your business’ intangible assets.
Trade marks can take many forms, depending on your business needs, with the most appropriate registration option. For example, you might choose to register a trade mark for your business:
- name;
- logo;
- slogan;
- colours;
- song; or
- any combination of the above.
Considering the examples above, a trade mark is a sign relating to the branding of your business rather than describing the function of your business itself.
Why Register a Trade Mark?
As a business owner, you have likely spent countless hours perfecting your goods or services before being ready for public consumption. Yet, with all the effort into establishing your brand, you must take the correct measures to adequately protect it from harm and enable it to further your business’ reputation.
A trade mark will help you develop your business’s brand, as it can help potential customers identify and connect with your business. Trade mark registration can also help you avoid legal issues, giving you exclusive rights to its use and commercialisation.
When Are My Trade Mark Rights Effective?
If you choose to register your trade mark, you might wonder when your trade mark rights will be effective. With the trade mark registration process being months or even years long, it can be daunting to think that your brand assets will not have protection for some time.
Once you file your trade mark application, your trade mark will be assessed against the legislative requirements to ensure it is suitable for registration. If it is not, you will have the opportunity to address these issues and attempt to overcome them to secure acceptance of your application. Once your trade mark is accepted, it will be published online in the Official Journal of Trade Marks, which is available on IP Australia’s website. At this time, the opposition period opens, which allows other businesses to object to your trade mark registration if they consider it is too similar to their trade mark.
The earliest your trade mark can be registered is seven and a half months after an application is filed. Further, you cannot claim that your trade mark is registered until you receive the Certificate of Registration. Although, your registered trade mark rights will be effective from the date you file your application rather than the date that your trade mark is examined or accepted by IP Australia.
Evidence of Use and Reputation
It is also essential to consider that you do not necessarily have to register a trade mark to protect your brand assets. It is possible to build up a reputation over time and dispute conflicting trade marks. However, having a trade mark registration makes this process much more streamlined.
For example, consider you have been using your business’ trade mark for several years but have not formally registered it. Suppose a competitor business then starts using the same trade mark as yours. In that case, you will need to demonstrate that you have rights to your trade mark, including showing that you have been using it for an extended period and that consumers identify the trade mark with your business. Although not impossible to do, this task can be pretty demanding. On the other hand, if you own a registered trade mark, you merely need to provide your registration as evidence of your rights.
How Long Does Trade Mark Registration Last?
Once you have registered your trade mark, your rights will be effective for ten years. However, at the ten year mark, you will have to renew your trade mark registration, which will incur fees. Fortunately, there is no limit to the number of times you can renew your registration.
Sometimes, a third party may remove your trade mark from the register. This can occur if you have not used your trade mark and someone else applies for its removal or if your use of the trade mark has not been in good faith.
Key Takeaways
A trade mark enables you to distinguish elements of your brand from all of your competitors, which will help you stand out in a competitive market. Some important things to note about registered trade mark rights include that:
- trade mark rights are effective from the date you file your application;
- you cannot consider your trade mark registered until you receive your trade mark certificate of registration; and
- your trade mark is renewable every ten years.
If you need assistance understanding your trade mark rights, our experienced trade mark lawyers can help. Contact us at 1300 657 423 or fill out the form on this page.
Frequently Asked Questions
A trade mark is a form of intellectual property (IP) protection that you should consider protecting your business. Trade marks can take many forms, such as your business’ logo, name, colour, song or slogan. Ultimately, trade mark registration gives you exclusive rights to the use and commercialisation of your brand assets.
The earliest your trade mark can be registered is seven and a half months after you file an application. Although you cannot claim that your trade mark is registered until you receive the Certificate of Registration, your trade mark rights will be deemed effective from when you filed your application. You should also note that you do not necessarily have to register a trade mark for your brand assets. It is possible to build up a reputation over time and dispute other businesses’ conflicting trade marks.