Startups and Trademarks

Startups and Trademarks

Are you in the start-up stage of your business and concerned about whether to trademark your logo or business name?

It’s often a concern that someone might take your business name or product idea right out from underneath you. And, it happens more than you think.

Trademarking is an important protection for your business, but at startup you may be jumping the gun a little.

Let’s take a look at what you should be doing before you make the decision to invest in the trademarking process.

Your first priority is to register your business name.

In Australia, it’s the Australian Business Register (ABR). Your clients can be located anywhere in the world, however, what is important is where you are located, because it is the law of the place where your business is registered that will govern any legal issues that may affect your business.

Registering your business name does not give you ownership of that business name.  It only allows you to use that name as a trading name.  What you can do is use the ™ symbol after any names that you may wish to trademark at a later stage.

How does using the ™ help you protect your business name without actually registering a trademark?

By using the ™ you are putting people on notice that you claim an unregistered or common law trademark in your business name, and gives you a stronger case if you need to commence legal action against another business for “passing off” or using your business reputation for their benefit.

If you can show:

  • a history of usage of the registered business name,
  • that you were first to use that business name,
  • evidence that you have invested time, money and effort in creating a business and reputation based on the registered name
  • documentation that you have suffered loss and financial damage due to someone else using your business name.

You may need to bring an action under Australian Consumer Law for misleading and deceptive misrepresentation.

So when do you decide to invest in trademarking your business name?

The decision to trademark is best made when you have proven success in your business and you know for sure that you are in your business for the long haul.

In Australia, you can make an application to register your trademark yourself through IP Australia or you can engage a lawyer to make the application for you.  The registration process is online and the IP Australia website has been developed to assist in-person applicants to make their own application.

Engaging a lawyer is useful and recommended to ensure you have selected the right categories for your business name, to conduct thorough pre-application searches, as well as deal with any complexities or objections to your application that may arise.

When you have registered your trademark, you own the right to use that trademark in the registered categories in the country you have registered your trademark.  No one can use your trademark without your permission or licence and if they do, you do not have to prove damage or loss to your business.  You only have to prove that your trademark was used without your permission.

If you would like to learn more about trademarking your business, book a chat with me so we can discuss further.

Shalini x

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