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Can You Use Your Brand Name Before It’s Registered As A Trade Mark?

Brand names can make or break your company. Should your brand be registered as a trade mark before using it in marketing material? A trade mark provides you with legal ownership of your brand name and therefore permits you to protect it as you deem fit. The act of registering your business name with the relevant government authorities does not offer you the same privileges.

A Trade Mark Is Not An Automatic Process

Registering your business name with the relevant state or federal authority does not prevent you from infringing on someone else’s trademark. Nor does it permit you to protect yourself against being infringed upon. If you have not registered your brand as a trademark, someone else may trade mark it regardless of it being lodged with the Australian Securities and Investments Commission (ASIC). Seeking legal advice when applying for a trade mark is important to ensure the process is handled correctly.

Applications lodged with the Australian trade mark office, known as IP Australia, can take 6 months or more from submission to registration. The first step IP Australia will take is to examine your application to ensure it meets certain standards and does not breach other trade marks. This step can take approximately two months. If the trade mark office has no objections, they will then advertise your application to allow others a chance to oppose it.

Can You Use A Trademark While Your Application Is Pending?

The short answer is yes, but with a few things to consider. Firstly, the process of lodging your trade mark can take 6 months or more (noting it will be backdated to the date of lodgement). Prior to lodgement, you or your attorney will perform an initial trade mark search to ensure what your lodging is unique or at least clearly distinguishable from others in the market. This will reduce the risk of your application being rejected due to infringing on another trademark.

Once lodged, it is recommended that you first wait for IP Australia to examine your trade mark. If they have no objections, then you have a good indication of whether your application will pass to registration. There is still a risk that your application may be challenged by others in the market but these first two steps should mitigate this significantly.

There is also the possibility that IP Australia may reject your application due to it being too generic and therefore unable to be trade marked. The good news is this is effectively a go-ahead for you to use it as public domain. Alternatively, you may decide to tweak the brand or logo to be more unique before resubmitting.

Do I Even Bother With A Trademark?

You’ve worked hard to build your brand and develop a reputation around that brand. To have another entity attempt to pass off their goods or services as yours robs you of potential income. They could also damage your name and reputation if their service or quality is inferior to yours. You are the best judge of your industry but don’t underestimate the market, when it comes to these matters it is best to err on the side of caution.

Think You Need Your Brand Trademarked? Kings IP Can Help!

Before starting out with a new business venture, seek legal assistance regarding protecting your intellectual property. Creating a brand and following the legal steps to take ownership of it through trade marking registration will afford you much greater rights in the long run. At Kings IP, we will perform the necessary checks and represent you to ensure your trade mark application is successful. Your brand should be legally yours to own, use and protect. Kings IP is in your corner. Contact us today to learn more about protecting your business.

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