Perhaps getting your brand registered as a trade mark in Australia is a no-brainer. A strong brand is an important part of your business model and you don’t want to leave it vulnerable. But maybe the question of whether you should register your trade mark is less clear. Getting a trade mark registered and then enforcing that trade mark comes at a cost and so maybe you are asking the question: Is it worth it?
In this article I’ve set out all the factors you should consider when deciding whether to get your trade mark registered in Australia. For quick reference you can also download a a checklist here.
You are promoting your business to Australians and earning revenue from Australian customers
Getting your trade mark registered and giving your brand legal protection is really all about protecting your current and potential income. If you’re trading in Australia and earning income from Australian customers then you should consider protecting your brand in this country. If you’re trading in other countries you may want to consider applying for a trade mark in those countries as well. This will mean that your brand will be protected in all the countries in which you are earning an income.
Your brand meets the legal requirements for Australian trade mark registration
Not all business names, logos or tag lines are capable of being registered under the Australian Trade Marks Act 1995. To be registered, your trade mark must meet the requirements of sections 39 to 44 of the Trade Marks Act. Trade mark applications are commonly rejected in Australia because the trade mark is not distinctive (section 41) or it’s substantially identical with or deceptively similar to another mark that has already been registered (section 44).
The tests that a Trade Marks Examiner applies under sections have been developed and interpreted over time through the legal cases that have considered these sections. A Trade Marks Attorney can advise you on whether your trade mark application is likely to meet the legal requirements for registration.
You intend to use your brand for 3 years or more
A trade mark registration lasts for 10 years so it’s probably not worth getting your trade mark registered if you don’t intend to use it over the long term.
If you like to change direction and chop and change your branding every couple of years then the investment (both of time and money) in getting a trade mark just won’t be worth it for you.
It would cost you more than $1,500 to change your business name and/or branding
Some businesses invest thousands into their branding. They have logos designed, a website built, packaging created. They invest in promoting their brand, printing promotional materials and advertising. If a business like this is forced to change their brand (because another business trade marks it) then the cost of doing so is high.
The cost of getting a trade mark registered varies, but it generally starts at the $1,000 to $2,000 mark. For many businesses the cost of trade mark registration is far less than the cost of rebranding. For those businesses, getting a registered trade mark is an appropriate way to make sure you won’t have to rebrand unless you want to.
It would cost you more than $1,500 in lost customers, lost SEO and decreased market recognition if you had to rebrand
Getting your business name or logo protected as a registered trade mark is about more than just preventing other businesses from using your brand. It’s also about protecting your position in the market, your brand recognition and loyalty and even the google rankings it may have taken you years to achieve.
Trade mark registration can protect you against the indirect costs that may arise if you have to rebrand.
You are emotionally attached to your branding
Some business owners have a personal connection to their brand. It’s more than just a catchy name or logo that helps them to promote their business. For these people, having to change their brand would be heartbreaking experience that may even spell the end of their business.
If you’re one of these people, and you want to keep using your business name and/or branding, even though it may be cheaper to change it, then protecting your brand with a registered trade mark is definitely something you should consider.
You are prepared to defend your trade mark rights
As a trade mark owner it is your responsibility to enforce your trade mark rights. If you are not prepared to do that then your trade mark registration will lose it’s value and effectiveness over time.
It may also cost you money to defend your trade mark rights. You may need to seek advice as to whether trade mark infringement has actually occurred (this is not as straight forward as you might expect), you may need to have a letter of demand drafted by an attorney or you may need to commence legal action.
If most of these circumstances apply to you and your business then you should consider protecting your brand with a registered trade mark. Before making a decision, it’s best to seek professional advice specific to your business. You can schedule a free telephone consultation with Lisa Win, registered Trade Marks Attorney, by clicking the link below.