Trademark Tips: Do you want to be exclusive? Register your trademark

By |2022-06-29T11:16:29+10:007-10-21|

Whether your business is established or just at the start-up stage, it is important to think about your intellectual property rights and whether you need to register them.

Unlike copyright, which exists automatically upon the creation of a “work”, you must register your trademark/s in order to receive legislative protection for your trademark rights.

Whilst there is no legal requirement to register a trademark, one of the main reasons to consider doing so is to protect your brand over the long term. Early trademark registration is a simple, powerful and cost-effective means of brand protection. Registration gives you the exclusive right to use (and to prevent others from using) the mark, in relation to particular goods and/or services.

If a competitor tries to use your mark, or a similar mark, in relation to the goods and/or services covered by your registration, then having the protection of a registered trademark can save you and your business from serious disruption and significant expense. However, if you don’t register your trademark, then someone else might – and that person or entity could then prevent you from using your brand name and/or trademark.

Another key reason why you should consider registering your trademark/s is that the rights which attach to registered trademarks are broader than the rights afforded to unregistered trademarks. The circumstances in which a registered trademark is infringed are clearly set out in the Trade Marks Act 1995 (Cth). If your registered trademark is infringed, you can access the remedies set out in the Trade Marks Act.

Those remedies are usually much more effective than the options available to people who only have an unregistered trademark. Depending on the circumstances, when a registered trademark is infringed, you may be able to obtain an injunction, award of damages, or an account of profits. By contrast, although there is some protection available to owners of unregistered trademarks, it can be more difficult (and more costly) to enforce those rights.

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Perhaps the best reason to register your trademark is that it may be your business’ most valuable asset. Your trademark and your brand are your business’ identity. The more successful your business, the more valuable the goodwill in your business and your trademark becomes.

As such, if you are preparing to sell your business, it is critical that you consider whether your trademark/s should be registered. Serious buyers will expect you to have taken steps to protect your intellectual property rights, including by registering your trademark/s. If you can’t show them that you have done that, then they may ask for a significant discount on the price they are willing to pay, or even walk away from a deal.

Given the relatively low barriers to registration, there is really no good reason not to register your trademark/s.

If you would like to discuss how to protect your trademark rights, or intellectual property issues more generally, contact us today.

Think Commercial. Think Nicholsons.

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