To Trademark, or not to Trademark?

By 20 February, 2017 January 21st, 2019 No Comments

If you’re a business owner, you may have heard of the term ‘trademark’, and you may wonder whether you need one, or whether registering your business name is enough to protect you and your business from anyone else using a similar business name to yours.

Difference between a Trademark and Business Name

A business name is the identity which a business operates under.  Generally speaking, all entities (whether individual or a company) need to register a business name that they intend to use while conducting their business.

However, even if you have registered a business name, it does not automatically provide you with protection against another business using a similar business name, logo or image.  This is where a trademark may be useful.

If you are operating a business and you become aware of another business that operates under a similar name or logo as you, the general public may be misled or confused into thinking that the two businesses are related.  A trademark operates to distinguish one business from another, and can sometimes be referred to as a brand.

A trademark does not only protect a business name, but can also protect a logo, word, phrase, picture, packaging, or anything else that is a unique identifier of your business that can be distinguished against your opposition.

What rights do I have with a Trademark?

If you have registered a trademark for your business, then:

  1. you have the monopoly of its use in the relevant classes in which it is registered;
  2. your legal rights are clear and uncontroversial; and
  3. your trademark will be listed on a publicly available register.

Accordingly, if you have registered a trademark, you will be entitled to require another person, business or entity to cease their operations and / or make relevant changes to their name, logo or image in circumstances where:

  1. they are operating a business similar to yours; and
  2. they are using a similar business name or logo to you; and
  3. you think are trying to benefit from the goodwill or reputation you have built up.

If you are suffering any loss or damage as a result of those business operations, you may be entitled to claim that loss and damage from the other business.

If you do not have a registered trademark, then it will be difficult for you to assert any rights you claim to have against the other business.

How do I apply for a Trademark?

If you wish to apply for a trademark, give us a call on (08) 6188 3340 or contact our office to arrange a free 15 minute consultation with one of our lawyers so we can provide you with further advice regarding how to apply for a trademark, the costs, the process, and your rights once the trademark has been granted.