Trade mark your brand

Trade marks are valuable marketing tools. Your business’s trade marks (i.e. its branding) is how you identify yourself and how customers recognise you in the marketplace. The more your business grows, the more valuable your trade marks become.

Read on to learn why registering your trade marks is the best way to protect your business’s branding and identity.

Trade mark basics

A trade mark is any sign that helps customers identify which business or company a product or service comes from. For example, your business name, the logos on your website and social media platforms, and even your packaging can function as trade marks.

Think of Nike’s iconic swoosh. One glimpse and you know exactly which company those runners come from, and maybe even what it be might be like to wear them. 

A well-protected trade mark can quickly communicate to consumers a company’s reputation, products and services.

The outcome can depend on a range of factors, including:

  • how similar the two trade marks are;
  • who used the trade mark first;
  • what goods and/or services the trade marks are used with; 
  • the market reputation of each trade mark;
  • the likelihood that consumers will confuse the two trade marks; and 
  • whether the trade marks are registered.
The best way to protect yourself against unauthorised use of your trade mark is to register your trade mark with a trade marks office.

Registering your trade mark offers such powerful advantages and brand protection that it is truly difficult to justify NOT registering your trade mark.

Key advantages of registering your trade mark include:

  • You get exclusive monopoly rights over your trade mark, meaning no one else can use it with similar goods and/or services.
  • Pursuing another party for trade mark infringement is far more straightforward and cost-effective if your trade mark is registered.
  • A registered trade mark is regarded as a business asset which can be licensed, sold and transferred. A registered trade mark can be easier to assign a dollar value to and transact with as compared with an unregistered trade mark.
  • A registered trade mark protects you from copycats across an entire country, whereas an unregistered trade mark is typically limited to the specific geographic area it has been used.
  • You can provide your trade mark number to marketplaces like Amazon, Facebook and Alibaba – these marketplaces act in favour of the trade mark rights holder in order to take down counterfeiters.
  • A registered trade mark in one country can form the basis of your trade marks in other countries.

Trade marks are usually words (NIKE), logos (the Nike swoosh) and slogans (Just Do It). 

However, anything that helps customers identify your business and brand can be protected as a registered trade mark. For example, some other trade marks you’ll recognise include:

  • CADBURY’S purple colour (a colour trade mark)
  • the WINDOWS login sound (a sound trade mark)
  • the triangular packaging of TOBLERONE chocolate (a shape trade mark)

Choosing your trade mark

When a business registers a trade mark, others can’t use that trade mark without their permission in relation to certain goods and services. This is a powerful legal right so it must be ensured that businesses can’t simply own common words and phrases that the general public might need to use. As such, only distinctive trade marks can be registered.

As a general rule of thumb, the more descriptive a trade mark is, the less distinctive it is. Indeed, some of the strongest and most well-known trade marks are highly distinctive and have nothing to do with the goods and services they are used with. For example:

  • WOOLWORTHS for grocery stores
  • APPLE for computers
  • IKEA for furniture
  • QANTAS for aviation-based goods and services
  • TIMTAM for biscuits

A distinctive trade mark also helps your customers find your business because it allows you to distinguish yourself from competitors. This is crucial if you have an online presence. A good way to check whether your trade mark is distinctive is to search for your trade mark online. If there are lots of related results which you’ll need to compete with, your trade mark might not be very distinctive.

Before using your trade mark, you should check that it is actually free for you to use. If another business has already registered the trade mark, your use of their trade mark, or something similar to it, can result in trade mark infringement.

The worst-case scenario is when a business commits to their branding without doing any trade mark searching, and some months or years into trading they receive a cease and desist letter from the trade mark owner. It’s only at this point that the business might seek trade mark advice, but by this point there’s often very little they can do besides rebrand.

No one enjoys being forced to rebrand, and it’s especially painful if you’ve already grown your business and developed a reputation and following. So before you commit to your trade mark, engage an attorney to conduct a thorough trade mark clearance search to ensure your trade mark is free to use – it can save you a lot of heartache and costs later on.

The Australian Trade Marks Office provides an intuitive online trade marks database where you can check if your trade mark is free to use.

There is also an international trade mark database where you can check the availability of a trade mark in other countries.

That said, even if your precise trade mark is not registered, if it is substantially identical or deceptively similar to a registered trade mark, use of your trade mark could still amount to trade mark infringement. This is why it is advisable to have a specialist trade marks attorney perform and advise on your trade mark search.

Trade mark rights are territorial. If you have only registered your trade mark in Australia, then your trade mark rights only protect you in Australia. Therefore, if you are looking to use your trade mark overseas, check that it is free to use in the countries of interest and protect your trade marks there too.

Registering your trade mark overseas is especially important in jurisdictions like China, where the frowned-upon practice of trade mark squatting has proven to be a problem for many businesses entering the Chinese market.