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What is a trademark?
In simple terms, a trademark is a symbol used by manufacturers or businesses to distinguish their goods or services from those of others. For example, the “flying kangaroo” logo of Qantas, the Australian airline, is a trademark. For services, it is known as a service mark, such as the fast-food chain “KFC.”
A trademark can be any visible sign, including words, graphics, letters, numerals, three-dimensional signs, color combinations, as well as sounds and smells, or a combination of these elements.
What are the risks of not registering a trademark?
Many people mistakenly believe that registering a company name or a website domain automatically grants them exclusive rights to use that name. However, this is not the case. Only by registering a trademark can one obtain legal rights to the exclusive use of that mark. Having a distinctive and memorable trademark or brand is an essential pathway to success in the business environment.
Once registered, the trademark owner has the right to use the mark. If anyone uses or implies a similar registered trademark without authorization, it can be considered an infringement and may lead to court orders and the obligation to compensate for losses.
According to a survey by the Business Victoria,
- 48% of small businesses had to rebrand due to trademark infringement.
- Three-quarters of trademark infringements resulted in costly lawsuits, averaging $100,000 in expenses.
- The average cost for small businesses to rebrand was between $130,000 to $240,000, excluding SEO losses.
Therefore, before promoting any product, service, or even a company name and logo, it is essential to register the trademark to safeguard the value of future business investments. For all new companies or anyone planning to do business, registering a trademark is an absolute must.
What are the steps of registering a trademark?
- Design a textual or graphic logo as the trademark.
- Determine if the trademark is registrable.
- Submit an application to the Intellectual Property Office of Australia (IP Australia) and choose the appropriate class for the goods or services to be registered.
- After preliminary examination by IP Australia, a trademark registration certificate will be issued, and publication will be arranged. However, others have the right to oppose within three months after publication.
Does IP Australia monitor whether someone violates trademark regulations?
No, IP Australia does not actively supervise or monitor trademark violations. You need to be vigilant yourself. If you discover someone infringing on your trademark rights, you can request the other side for the following actions:
- Cease using and selling infringing products or services.
- Provide compensation for losses and legal expenses.
- Destroy infringing goods.
- Identify the suppliers of the infringing products.
If you have any questions about trademark, please contact us immediately. Our commercial lawyers are more than happy to answer any related legal questions for you.
*Disclaimer: This document is only general guidance and cannot be regarded as a specific answer to your individual questions. The law is complicated, and we strongly recommend that you seek professional legal advice. Canaan Lawyers will not be liable for any loss or damage caused by any person due to the information contained or missing in the document.