Protecting Your Brand – A guide to Trademarks and Business Names

Commercial

The name of your business or company is a cornerstone of its identity and is often the means by which customers can identify your products and services, it’s thus important to ensure your brand name is protected under the law.

Business Name Registration

The Business Names Registration Act requires businesses to register a business or company name with ASIC in order to trade in each state or territory. It is a common misconception that registration of a business or company name is sufficient to protect a brand from competitors, whilst registration will prevent another business from registering with the same name, this is the extent of the protection. Businesses will still be able to register a name that is deceptively similar or from using the same business name without registering the business. Registering a name also doesn’t provide intellectual property rights over the business name and will not stop someone with a registered trademark from using the business name.

Trademark

Businesses wishing to secure their brand from competition should thus consider registering a trademark over the business name. A trademark is a form of intellectual property right that gives exclusive right to the use of the trademark, which can take the form of a name, a logo, a jingle, packaging, or other unique aspects of a business.

Registration of a trademark will prevent other businesses from being able to pass off your trademark, or from using a trademark that is deceptively similar. The owner of a registered trademark will have access to legal remedies to enforce these rights, such as an injunction, in instances where their trademark is being infringed. Note though that trademarks apply to specific classes of goods and services, another business offering different products or services may still be able to register the same trademark in their respective industry provided there is no potential for confusion between the products or brands.

Registration involves applying to IP Australia detailing the type of trademark being applied for, the class of goods and services being registered and whether there are other similar trademarks in existence. If successful, the trademark will become protected in all Australian states and territories for an initial period of 10 years and can be renewed for further periods of 10 years upon payment of a fee. Once registered the trademark must be actively used, as any registered trademark can be removed on the basis of non-use if not actively used for a period of 3 years.

Copyright

Another form of intellectual property rights that may be relevant to protecting your business identity is copyright. Under the Copyright Act 1968 (Cth) all original work automatically generates copyright protection, with this act applying to literary, dramatic, musical, and artistic works. This means if you have developed a logo or other form of creative piece related to your brand then you will most likely own the copyright, however if a third party has produced the work for you then you may need to acquire the copyright for the work contractually.

Copyright protection doesn’t protect your brand against independently created assets, meaning if a competitor produces the same asset by themselves then they won’t have breached your copyright. Copyright protects the expression of your ideas, not the ideas themselves, so a competitor cannot express the same asset as their own unless they’ve developed the asset independently.

A registration of intellectual property is a simple and cost-effective process that our team of lawyers are more than happy to assist. If you’re seeking to protect your brand or want advice on the process of registering intellectual property rights our team of lawyers are more than happy to assist.

 

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