“What is a trademark?” It’s a question that’s tapped that brilliant brain of yours more than once. Are they only for big brands (like Apple?). Or should your growing empire have one too? And, like, what the heck do they even do?
Long story short: the purpose of a trademark is to protect, prevent and proactively claim ownership of what’s rightfully yours. But there’s a bit more to it.
Grab a snack and snuggle up in a cosy spot. Here’s everything you need to know about trademarks, to set your creative business up for success.
First things first:
What is a trademark?
A simple trademark definition is that it’s a way of distinguishing one business’ unique elements from those of another business.
This can be your business name, product names, logo – even a colour or a smell. Essentially, a trademark is a type of intellectual property that your business owns. And officially registering it makes that ownership legally legit (and a heck of a lot simpler to protect, should the need arise).
Because we’re staunch advocates of the importance of trademarks in making your biz life better, here's a comprehensive guide on how to register your trademark.
What does a trademark do?
TLDR; A registered trademark is designed to protect your intellectual property.
Your biz, as the owner of a registered trademark, will have the exclusive right to control how the trademark’s used – including licensing it to other businesses. This also means you can take legal action against copycats who try to pass off your trademark as their own (unintentionally or otherwise).
Maybe you don’t see yourself opening up several franchises, diversifying your products or services, getting investors on board or selling your business in the short term. Buuut registering a trademark (or as many as you need!) is a smart decision no matter your business size.
Q: "Do trademarks have to be registered?"
A: Technically, trademarks don’t *have* to be registered. But we’d definitely recommend it (and not just because we’re a li’l biased in favour of legal legitness).
Now that you're well aware of your #1 question ('what is a trademark,' to jog your memory)... There are a few things to know before you register a trademark.
First up, what’s the difference between a registered and unregistered trademark?
- Registered trademarks appear on the IP Australia register. They feature the ® symbol, which is the global signifier that your trademark is protected under law. Here in Australia, trademarks remain registered for 10 years, at which point you can apply for renewal (which lasts another 10 years).
- Unregistered trademarks don’t appear on the IP Australia register. They’re protected by law, but not by IP Australia. You may still have certain rights to your unregistered trademark, but they’ll be much more difficult to defend in a tricky situation (not to mention the unnecessary stress and legal spend!).
FYI: the Trade Marks Act 1995 marks that it’s an offence to use the ® symbol with a mark that is unregistered. Actually, you can get fined from $6,600 for illegitimate use. Yikes!
Q: "Am I protected while my trademark application is pending?"
A: Trademarks that are pending registration (which can take around 8 months) are afforded certain protections from the date that their listing appears on the register as “pending”. We suggest adding the ™ symbol next to your mark at this stage, although you can technically use it prior to registration.
Just keep in mind that the ™ symbol isn’t what protects your mark – the registration application is.
Why do you need a trademark?
Here are five of the key reasons why registering a trademark for your growing empire is a stellar move. Not to mention, a legally legit one!
You have BIG plans for your creative business
Having a registered trademark means that you can apply it to the products you sell, the uniforms you wear and any aspect of your online presence. After all, you own the rights to it – officially!
You can also license your trademark to other brands for their use (and your profit), giving you another way to earn some dosh – and we all know how important it is to diversify your income streams!
Plus, if you ever sell your biz, having a registered trademark means it forms part of your business’ assets. This means added value for the buyer, and added profit for you! Plus, prospective buyers will be able to see that you haven’t cut corners while building your biz. AKA that you’re legally legit and your biz is golden to run with.
2. It stops copycats in their tracks
You’ve spent a heck of a lot of time and money growing your business and establishing a good reputation. Now imagine if a copycat came along and used your biz’s intellectual property without your consent. Your customers and clients would be confused as all get-out!
So, what is a trademark going to help you achieve when faced with copycats?
Registering your trademark makes it much easier to defend your brand, products and biz against copycats. And, because everyone should be doing their due diligence and checking the trademark register before deciding upon their biz or product name, it deters competitors from unintentionally choosing the same (or similar) names for their own business in the first place.
3. It tells consumers you mean business
Registering a trademark adds credibility to your brand. It lets consumers and competitors know that you take your biz seriously – meaning they should, too! After all, what would have happened if Apple did not trade mark its bitten apple symbol? Competitors would want to snag some of the profit Apple has made from its revolutionary products no doubt.
4. It averts legal issues down the track
Having a registered trademark means that if you do come across a copycat, you can take immediate legal action with the support of the Trade Marks Act 1995.
However, if your trademark isn’t registered, the process is a whole lot trickier.
You’ll need to take action under section 18 of the Australian Consumer Law instead, which requires you to provide a heap of proof that you are the original owner of the trademark, and the copycat is “passing off” their stuff as yours (meaning you need to prove that they’ve engaged in misleading and deceptive conduct, and that your reputation and bottom line has been negatively impacted as a result).
This is a long and tedious process that’s guaranteed to give you a right headache!
Worst case scenario, you might even be the one chased after as a copycat if another biz beats you to the trademark punch. After all, IP Australia only checks the trademark register to find other representations that may be too similar to the proposed mark – they’re not out there Googling to see if it’s already being used by your biz!
The last thing you want is to have to waste your hard-earned cash (not to mention a heap of time) changing your entire brand to avert their accusations. Or spending it on legal fees to fight against their claims. Eek! After all, even if you were successful, you’d still need to go ahead and register your trademark after enduring all the drama. So you might as well have just gotten it over and done with already!
What is a trademark's downfall in this sitch? Nada.
5. It helps your biz stand out from the crowd
You’re probably wondering how registering your trademark will help your business look more appealing than those of your competitors. Well – once your trademark is officially registered with IP Australia – you can include the ® symbol wherever the registered representation of your shiny new mark appears.
This little detail creates a point of difference from your competitors and show your customers and clients that your brand doesn’t do things halfway. This can boost customer loyalty, and give your biz a sense of legitimacy in a saturated marketplace.
It’s time to make your mark on the world!
Now that you know what a trademark is and does, it's time to get legally legit!
To get your trademark sorted, we’re here to help – simply book in a consultation with one of our very-not-scary lawyers.
We can even register your trademark on your behalf. Let's do this!
Riz Amin is Foundd Legal’s founder and a lawyer of over 20 years. When she’s not nose-deep in contracts (or a good glass of red), she’s chasing after her two kiddos or two fluffballs.
** Disclaimer: This article is for general information purposes only, and does not constitute legal or other professional advice.**