Shark Tank wrap up 3 - trade marks and business names explained

Published: 
23 February 2015

Sunday's Shark Tank Australia had five new Aussie entrepreneurs on show for us.

In case you missed it, here's what everyone is talking about from episode three.

Last night's episode profiled a very common mistake for new businesses. Anne Barclay of Simply Moreish Marinades had registered her business name but had not applied for a trade mark. She was also unaware a potential competitor had a pending trade mark application for the word Moreish.

If you're like 'Simply Moreish Marinades' and think registering your business name means you have exclusive rights to trade with that name, you're wrong. Registering a business, company or domain name does not give you any exclusive rights for your goods and services.

Here's where it gets tricky - a business name does not give you legal rights to that name. This means that if someone else uses your business name for their business, you don't have any rights to stop them.Only a trade mark can give you that kind of protection.

Similarly, the fact that you have been able to register a business, domain or company name does not mean that you are not infringing on someone's trade mark.

So what is a trade mark you ask?

A trade mark is used to distinguish your goods and services from someone else's and is enforceable under intellectual property (IP) law. For example, the Lonely Planet ® logo is a registered trade mark for travel guides. This protects the owner from other businesses using the Lonely Planet trade mark.

A trade mark is a way of distinguishing the goods or services of your business from those of other businesses, it gives you exclusive rights to commercially use, license or sell the trade mark for the goods and services that it is registered under.

Any feature (or combination of features) that distinguishes your goods or services from others can be registered as a trade mark, this includes a letter, number, word, phrase, sound, smell, shape, logo, picture or aspect of packaging.

Why would I need a trade mark?

Sadly, a simple search of the Trade Mark Register before she started her business may have saved Anne Barclay a lot of hassle. Alternatively, she could have lodged a TM Headstart application for $120 and had Trade Mark examiner do a check on her behalf. If she runs into legal trouble, she may have to take down her website and dump her branded packaging - a costly exercise that could be avoided. This is a useful lesson and practical example for all in business. Simple IP mistakes like these don't make your business very attractive to investors.

Protecting your trade mark will protect the identity of your goods and services, and prevent others from imitating your brand! Much like 'Surf Safe' last night, this entrepreneur from the West protected his brand by trade marking 'Surf Safe'. Pitch 2 Luke Wilson from Townsville lodged his 'Captain Active' trade mark application late in 2014, and even though it’s pending he’s been able to get in first and protect himself before filming.  

If you need exclusive use of your name, much like the 'Captain Active' or 'Surf Safe', it's a good idea to first register your business name and register it as a trade mark, to save you time and money.

Similarly, you can protect other aspects of your business. Much of your creativity and innovation can be protected with registered IP like trade marks for your brand, patents for inventions, and designs for the way a product looks.

If you're considering applying for trade mark protection and securing your own slogan or brand name -TM Headstart is a great place to start.

TIP: always include a search of IP Australia’s trade mark database, ATMOSS, before investing in a name for your business or product.

Stay tuned for Episode 4 of Shark Tank which airs 8.00pm Sunday 1 March 2015 on TEN for more optimistic entrepreneurs putting their businesses on the line.