Can I Lose My Trade Mark?
Some people believe that a trade mark is simply a sign associated with a brand. A trade mark is not just a logo, contrary to common opinion. It may be a message, word, sound, picture, packaging feature, or combination of those things. It is important to take early and proactive steps to protect your valuable trade marks and intellectual property.
Trade marks exist to grant you exclusive rights to your intellectual property, allowing you to prevent others from profiting from your hard work. Preventing infringement is key to your business’ brand, meaning it is important to protect your trade mark from other businesses. If you are trying to avoid losing your trade mark to another business, this article will take you through the steps to protect your trade mark.
How Can I Lose My Trade Mark?
According to trade mark law, you must voluntarily use your trade mark or risk having it taken away. Third parties can file to remove your trade mark if you do not use it. This is done to deter businesses from registering trade marks with no intention of using them.
In addition to non-use or abandonment, there are two other ways for you to lose your trade mark rights, even when using your trade mark.
Overly Generic Trade Marks
If a trade mark becomes too generic, it loses its distinctiveness and cannot be associated solely with the product or brand in question. This process is sometimes called genericide. This can lead to loss of your trade mark rights, as your trade mark must be capable of distinguishing your branding specifically, not just the product you sell.
For example, some brand terms were not originally generic, but lost their trade mark when the general public started associating the brand with the product itself. Band-Aids, aspirin, and Yo-Yo are all examples of brands that became associated with the product rather than the brand itself over time.
Failing to Protect Your Trade Mark
Trade mark infringement occurs when a trade mark is copied or used without permission.
Some apparel manufacturers, for example, try to pass off generic items as authentic by attaching name labels to them without the authorisation of the trade mark owner.
For example, suppose somebody else uses your trade mark without your permission. If you do nothing to stop them, the courts may ultimately determine you do not maintain your trade mark rights. You waive the right to sue for trade mark infringement in that particular case. This is because you have failed to defend your trade mark.
Your right to defend your trade mark only concerns the classes you registered your trade mark in. Therefore, if you have registered under Class 15 for your type of guitar, you can only bring a claim if the infringement occurs in this specific class.
How Can I Prevent My Trade Mark Rights From Revocation?
Preventing rivals from misusing your trade mark and being aware of other people’s use of your trade mark is the most successful way to avoid losing your trade mark. This may involve bringing legal action against rivals who use your trade mark to identify their goods. The onus is on you to keep an eye on your brand so that you can intervene if necessary.
If your trade mark registration is about to expire, it is important to renew it as soon as possible. In Australia, registered trade marks are only valid for 10 years. Failure to renew your trade mark means that you lose your trade mark rights. Renewing your trade mark ensures that your business is legally secured and that rivals can not benefit from your hard work.
To avoid losing your trade mark, make sure your trade mark:
- is unique;
- remains in use;
- does not fall victim to genericide; and
- does not expire.
Frequently Asked Questions
An overly generic trade mark is something that is common and easily confused with other things. For instance, it is not unique to you, and you might have trouble maintaining it.
Non-use occurs when you do not use your trade mark for a period of time. If this happens, other people may be able to apply to revoke your trade mark.