Last updated: 
14 April 2022

Each year, hundreds of businesses risk huge commercial losses with their IP. Most could be avoided with a simple trade mark registration.  Rebranding, legal fees and missed growth opportunities are the top 3 problems we see businesses encounter.

Rebranding

Without a registered trade mark, your brand is not protected. If someone claims you are infringing their trade mark, you may be forced into an expensive rebrand.

From a survey of 400 small businesses, 35% said they had to rebrand or abandon a brand because the trade mark was not available to them.

Jumping on a trend or copying another business by using a similar brand or name can lead to confusion. This can be both damaging to your reputation, and result in customer confusion. They may be looking for you, but find another similar business instead.

However, if you attract customers away from a competitor by copying their brand, this would be a trade mark infringement. This can even happen if they haven’t registered their trade marks yet. This is because in Australia a “first to use” principle applies when settling trade mark disputes.

When registering your trade mark, it is important to note that every day terms cannot be trade marked. “Apple” would not be able to be trade marked in the fruit category, but it is ok for computers and electronics.

If your name is too generic and cannot be registered, this would result in a wasted branding strategy.  Your business may need to develop a new brand name or logo to avoid facing expensive legal costs to seek registration, or costs defending against an infringement.

As part of an effective brand strategy, it is important that research is done early in a business’ development. A trade mark is an investment in t your business’ identity and future commercialisation.

Cost of legal fees

If your brand is not easily registered as a trade mark, it can be expensive and time consuming to secure these rights. To register a common name or descriptive word you have to establish you are renowned in the marketplace. This can often prove expensive. Your rights could be removed if they are not used in the marketplace correctly or are infringing on another brand.

A misconception is that registering a domain name or company name is the same as a trade mark. Many business owners assume that that they can worry about it later and the risk of being discovered by other businesses is low, but responding to a challenge by another business or a court order can incur expensive legal fees which quickly add up.

Opportunity cost

If your brand does not have trade mark protection, it is less likely to experience high growth. You might miss opportunities such as selling in major supermarket chains or being listed on online marketplaces. National retailers and online platforms expect the brands they promote to have appropriate IP rights. Businesses without trade marks are less attractive to investment and experience less growth. Registered trade marks show investors your brand will not put them at risk of infringing other products sold alongside yours.

What happens if I don’t own a trade mark?

Not every business needs a trade mark. Some rely on location to attract business or distinguish themselves. Others provide goods or services that are not directly marketed. Sole traders operating under their personal name or a family name may not need to register a trade mark. Operating this way can be exempt from infringement.

Whatever your business, if you decide you do need a trade mark, registration is like an insurance policy for your brand or product image. It provides you with an initial verification that the trade mark can be registered and won’t negatively impact the marketplace. It can then be sold and licensed as a business asset.

For more information about the trade mark registration process, visit our website