Trademarking 101

Hand written typography

If there’s one thing I know from my extensive legal training binge-watching Law and Order and Ally McBeal during my HSC study period, it’s that building a brand is of little use if it’s not meticulously protected. Trademarks are real, and they are also real-ly useful if you’re serious about building a mega-brand.

Without giving away too much of how my advanced Ally McBeal Diploma let me down, I recently had to cough up a small fortune for my lack of knowledge around trademarks. I can’t decide whether to blame it on my 22 year old unknowing self when starting up my business, or simply the fact that I hadn’t yet discovered superfoods like kale and acai berries. Either way, it was a hard (and expensive) lesson on why your brand name should always be trademarked.

Through this process I made a new and cherished friend, my lawyer Demetrio, aka Legend of Law and all things boring important. Demetrio and his team at Law Squared guided me through the process of trademarking not one but two business names with ease and grace, and they never once told me I was an idiot (even given the amount of ammo in their armoury).

So, here’s a few things I’ve learnt, edited, refined and artfully nitpicked under the friendly instruction of Demetrio.

  1. TRADEMARKING IS A TRICKY BUSINESS
    It is a very involved subject, and worth reading up on stat! As you develop your brand, particularly in a highly competitive industry, it is recommended to protect yourself against any copycat competitors. Trademarking your brand will give you protection and exclusivity against infringement, identifying your company as the legitimate source of specific goods and services. Sounds complicated, but often the most vital things are, right? Instruction manuals, Business Activity Statements, relationships — need I go on?You can trademark all facets of a brand’s identity, but the process to approval isn’t as simple as covering every single stroke of your logo and phrasing of your tag line. When you submit an application to trademark an aspect of your name, if it is deemed that another business could fairly and reasonably use the same or similar trademark, the application won’t be passed. So do your research and apply accordingly!
  2. WHAT’S IN A NAME?
    Choosing a business name is one of the most exciting parts of developing your business baby. You grab a bunch of butcher’s paper, a team of your favourite brainstorming maestros and get scribbling on hundreds of ideas for the perfect business name. The excitement and buzz and chatter and permanent marker fumes can easily blur some of the more practical aspects of name-calling — whether or not it is even yours for the taking in the first place!
    A name gives your business identity, personality, and allows you to develop and grow a brand. But before committing to a name, sending off your brief to designers, and requesting accountants to register the name, you really should check that your winning, shining, glorious chosen name does not infringe on another company’s rights or trademark.
    Two quick and simple searches can come to the rescue to ensure your name is available. An ASIC search will tell you whether your business/company name is available or similar to another. A trademark search will allow you to take a precursory review on whether your business/company name infringes on someone’s trademark. Get familiar with these bad boys!
  3. WHEN SHIZ GETS SERIOUS
    Ideal things to wake up to: the smell of coffee, the sound of waves gently crashing, the feel of soft linen on skin. Less convenient things to wake up to: overnight mosquito bites, jackhammers on a construction site outside your window, a cease and desist letter.
    Ugh. Facing a cease and desist letter from a trade mark holder, either upon launch or immediately following the launch of your brand, will soon see your business go from its highest high to the depths of Mordor. Your business name and logo is what your people will associate with your service or product — so lovingly and vigorously protect them both! And do all you can to avoid that sobering letter in the mail.
  4. GET DISTINCTIVE
    At Smack Bang, we like to swim a little against the current. Okay, a lot, at times. Apply the same theory to your name creation, and you’ll be on the right track. Stand out in the crowd with your name and logo so your chances of landing IP protection increase.On the flip side, you’ll struggle to receive trademark protection on a brand name that is considered too close to another which is already registered. If you continue trading under that name, you will remain unprotected, and worse, could be infringing upon the third party owned trademark. Eep!
    Face it — you spend an absolute fortune on marketing, a glorious website, the most stunning branded stationery and the perfect office space. You don’t need IP Australia to come to the party, drop a bomb at your e-door and set you on a temporary rollercoaster from hell. It’s an avoidable disaster. Seek legal advice before taking the plunge.
  5. OPERATING OVERSEAS
    Wherever your product or service operates, you must cover yourself with a trademark. Just like you need to conform to the dreaded yellow fever vaccination in order enter an exotic locale like Kenya, so too you need to put on some armour when your business explodes all over the planet.
    Registering your trademark overseas will protect your brand in those markets. Sometimes you may need to engage an agent in that particular area to help make this process work, and you will find that legal professionals often already have these agency links to offer. Things can get tricky, and just because you have a trademark on a particular name in Australia doesn’t mean it is covered elsewhere, so be careful to ensure you don’t wind up sued in a foreign jurisdiction. It can all seem a little daunting (because it sort of is!), but if you get in touch with a lawyer, the process can suddenly become as light and fluffy as a bowl of marshmallows.
  6. KEEP IT CLASSY
    Trademarks are categorised into various classes, so you have to do a bit of sticky beaking to figure out where your business falls. The class determines which sectors you are protected under. The flip side of this is that it will also determine which classes you are not protected in. Simple but not so simple, right?
  7. GET SMART
    The world of trademarks is a complex one, even trickier than a good old rubix cube perhaps (who knows!). We recommend having expert guidance and advice from a lawyer to complete your trademark application and to adequately ensure your brand and your business is protected. With new changes at IP Australia that were just put in place on 10 October 2016, the trademark process is now much more cost effective and designed in a way to assist champions like you in protecting your brand. Don’t be overwhelmed, just get smart!

The legends at Law Squared partner and work with passionate entrepreneurs and businesses who need their technical help and general magic. To learn more about IP and brand protection, get in touch with the legends at hello@lawsquared.co

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