A distinctive trademark is the footing for a stellar reputation and the foundation of every successful business.
But what exactly is a trademark? What is the relationship between trademarks, company names, business names and domain names? And why should you register your mark, even if you have been using it for decades?
With online activity growing every year, businesses large and small have greater capacity than ever to build a strong reputation. Nowadays, a significant proportion of a company’s total market value can be derived from intangible assets such as brand equity and intellectual capital.
It should therefore be a priority of all businesses to take necessary steps to establish and legally protect any trademarks they use to promote their products or services.
What is a trademark?
A trademark can be a word, number, shape, colour, sound, smell or action that is legally registered by a business to represent its product. It enables a business to establish its own identity and distinguish its goods and services from those of its competitors.
Confusion often arises however when we start talking about company name registration, business name registration and domain names. So here’s the rundown on how trademarks are different from these other registrations and how they relate.
Company names
Whilst a business’ trademark can be the same as its company name, the two registrations are separate and serve different purposes. A company name is registered at the time it is registered with ASIC, and it identifies the legal entity that owns the business. A trademark on the other hand, is designed to allow consumers to distinguish its products and services in the marketplace.
Business names
A company’s business name can also be the same as its trademark however once again, each needs to be registered separately and serves a different purpose.
Business name registration is only required if a legal entity wants to do business under a name different from its own. In such circumstances, the business is legally obliged to register the business name it intends to use with ASIC. However this registration does not confer any rights in the business name.
Domain names
Businesses can register a domain name which is a unique address which identifies the location of your website on the internet. Often businesses will try to obtain a domain name that is consistent with their existing business name or branding, however this is not compulsory and may depend on what is available. Unlike a trademark, domain name registration does not confer any proprietary rights in a business or product name.
The take home point is, no other type of registration confers rights in a particular trade name or mark to distinguish products and services, which takes us to our next point…
Why should businesses register their trademarks?
Registering a trademark is not compulsory, and it is possible to establish an unregistered trademark simply through use over a period of time. However, there are significant drawbacks to going down this path and no guarantees you will be able to challenge someone else using your mark if it is ever disputed.
Registration is the only means of obtaining exclusive rights to your trademark and complete legal protection.
In addition to exclusivity, here are some other benefits you can enjoy as a registered trademark holder:
- A registered trademark is saleable property that can be sold or licensed independently of your business.
- A registered trademark deters others from using a trade mark the same or similar to yours for similar products/services and provides clear cut rights to take action against potential infringers.
- Registered trademarks operate to protect you Australia wide.
- Registered trademark holders may call on the Australian Customs and Boarder Protection Service to assist in keeping foreign materials from entering Australia which may infringe their trademark.
For businesses that are serious about protecting their marketing investment and building a secure reputation for their products or services, trademark registration is a fundamental first step.
For more information on how easy it can be to register your trademark, contact Natalie Murray-Jones, principal of brandU Legal.