According to the Australian Bureau of Statistics, 76.4% of small businesses have no intellectual property (IP) protection. Many business owners assume that IP matters are not applicable to them, or not a priority. However, do you know the danger this kind of thinking poses to your livelihood?
The most common IP mistake is not having your business or brand name registered as a trade mark. This can have a financially devastating impact on a small business. One of our clients even ended up bankrupt due to this error!
Danielle was a confused and disgruntled client who walked into my office last year, having received a letter that made her heart pound. That letter was a Cease and Desist notification, informing her that her business was infringing an existing trademark. As it turns out, Dannielle had recently offered someone a job online and this potential employee had registered Danielle’s business name as their own trademark!
This reminds us of the essential nature of trademark registration. Registering your business name as a trademark is fundamental to your brand’s survival.
Having a business name registered with ASIC is insufficient and provides you with no intellectual property protection whatsoever. If somebody else registers your business name as a trademark, the consequences could be devastating for you. Trademarks are a legally superior registration and therefore trump a simple business name registration, every time.
‘But I did a trademark search myself and it was all clear!’’
We hear this all the time. Unfortunately, trademark searches are not as simple as they look. You must differentiate between the various goods and services of the registered trademark and compare those to yours using the legal tests, which can sometimes be quite confusing.
For example, when a client of mine saw that a trademark similar to his was registered by a radio station for providing business information and advice over the radio, he thought he was safe. However, he was providing the same type of information personally to his clients, and under the legal tests, the radio station services were identical to his. The mistake of not registering your brand name as a trademark could be fatal for your business. Re-branding can cost up to $20,000 and court procedures generally cost at least $100,000.
This is why it is important to seek advice from an IP expert. Please note that not all lawyers are IP experts. Lawyers sometimes specialise in different fields. For instance, somebody who only does personal injury law is unlikely to be the best person to talk to for your IP needs.
Another reason to complete the full registration process, is to protect yourself from infringing someone else’s trademark.
ASIC may grant a business name registration even if the name is already registered as a trademark. This can get small businesses into serious hot water! Trademarks are usually granted to the first person to file the application. If you want to guarantee ownership of your brand name, and ensure your competition cannot steal it, then registering your trademark must be your priority.
Imagine yourself in the following scenario. You have worked for years, building up a client base for your growing business. You have invested thousands of dollars into marketing materials which have your brand name on them. You have attended countless networking functions trying to raise the profile of your business. You may even have been lucky enough to speak at business functions or have a bit of local press. You have even been wise enough to register your business name with ASIC.
One day, you decide to protect yourself against your competitors and register your businessname as a trademark. To your shock that you discover that someone else already owns this trademark! The consequences of this are far reaching. You now cannot legally use this branding, or in the worst-case scenario you may find yourself in court for use of someone else’s IP, which is stressful and expensive, and you may have to pay any profits you made under that name to the owner of the registered trade mark!
The only time that you are 100% safe to use a business name or a brand name is if you have it registered as a trademark.
It is important to note that not all names, logos or brands can be registered as trademarks. Watch out for Cathryn’s blog on how to select a legally strong brand.
Cathryn Warburton is an internationally award-winning solicitor, patent attorney, author, mentor and speaker. She is The Legal Lioness with a passion for safeguarding her clients’ business and intellectual property interests. She founded Acacia Law when she realised that law firms run by old men were too inflexible to empower her to tailor her legal solution to each client’s needs. www.acacialaw.com
Shar Moore is an International Award Winning Mentor, Keynote Speaker, Author, Mum and Nani. Her work with women globally, has led her to publish YMag, encouraging people to be the best version of themselves, by living their Y.