Why bother trade marking? Here are the top 5 reasons

Amongst the busy work of launching your business or brand, it can seem like a lot of extra hassle to bother registering a trade mark. But there are some very good reasons to go that extra mile, writes Kate Ritchie, trade marks attorney and founder of Ethikate.

The initial stages of launching a business are generally very exciting. Seeing your idea brought to life and starting to build your brand is an exhausting but exhilarating process.

Sometimes in all of the excitement, some of the seemingly boring, but crucial, steps in protecting your business are forgotten or pushed to one side.

Intellectual property protection and registering a trade mark often fit within this category – seen as too complicated, too expensive and just too hard.

Or perhaps another small business owner who has registered a trade mark, but doesn’t have a foundational brand protection strategy in place, posts about a negative IP infringement experience online and you’re left thinking – why bother trade marking?

In reality, there are many important reasons to register a trade mark and the extent and quality of the protection depends on numerous factors specific to each business.

The top five reasons to register a trade mark in Australia

1. National protection for your brand

Registering a trade mark provides you with national brand protection, even if you don’t yet have a reputation or presence in a particular region of Australia.

For example, we’ve had clients with no trade mark registration come to us to try and stop someone in another state or city from using the same brand name in the same industry.

Unfortunately, in the absence of any prior reputation in that location, there’s not much a business can do to stop a competitor from doing this.

2. Protection from claims of trade mark infringement being made against YOU

As a small business owner, the cost of defending a claim of trade mark infringement can ruin you.

By having a trade mark registration, others can’t sue you for infringement in relation to the goods and services for which your trade mark is registered.

3. Create an asset for your business

Trade mark registration creates an asset for your business that can be sold, licensed (and franchised) or secured.

Anyone can copy a business idea that isn’t protected by intellectual property, but if you have a trade mark no one can copy it if it is identical or deceptively similar.

Your registered trade mark can become the most valuable asset of your business.

4. Exclusivity

No one else can use your trade mark or anything deceptively similar for similar or related goods/services to yours. This means that you will be able to have a distinctive brand that stands out from the crowd.

Exclusivity does not extend to a monopoly over all goods and services in every industry. However, if those goods and services are similar or closely related to yours and there is a risk of consumer confusion, then you are well within your rights to oppose it/stop them from using and registering it.

5. Enforcement

Having a registered trade mark will usually make it easier to stop others from using a similar brand for related goods/services. For example, a trade mark registration shows that you are the exclusive owner of the trade mark.

This can be very helpful in lots of ways:

• Businesses are much less likely to challenge/ignore a cease and desist notice
• Social media platforms are more willing to remove infringing pages/sites
• Domain name recovery can be easier
• If you sell products, then you can give notice of your trade mark registration to Customs who monitor for any counterfeit products entering the country

These are just key reasons to register a trade mark. As a small business owner, you may not always be in a financial position or good legal position to stop all who you believe are infringing your trade mark.

However, registering a trade mark puts you in a much stronger position and empowers you to make that choice.

This post was originally published in 2016 and has been updated for 2022.

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