Protecting your IP is imperative to business success, says Matt Crouch.

Matt crouch
Hodgkinson McInnes Legal

In the frenetic world of business events, meetings and travel, most people seem to be so busy all of the time. It is rare that I see a business that has taken the time to stand back and ask: “Have I protected my intellectual property – and is it protecting me as it should?”

The thing about intellectual property is that its intangible nature makes it easy to ignore – or to assume that “I’m not being sued, so everything must be OK”.

Trade marks are one of the most important forms of IP because they identify the origin of your products and services. Trade marks are an integral part of your goodwill – that elusive business asset that generates your trade and profits. Yet few consumers ever think, when they reach for the familiar shaped red labelled soft drink from the store fridge, that they are really responding to a brand; and that the brand they instinctively reach for is created by a trade mark.

What is your brand and how do your customers distinguish your products and services from all of your competitors? Without distinctive branding, your business can get lost in the sea of competitive commerce.
Trade marks are so important – but so many businesses fail to look after their own interests – and it really doesn’t take too much to properly care for and use this crucial asset.
The following is a blueprint for choosing, using and protecting trade marks from a legal point of view.

So, here goes:

  1. Choose a trade mark that distinguishes you and your products and services from the pack. Avoid, if you can, words that describe the type or quality of your offerings. They are harder to register and it’s a good bet that the market is probably already saturated with similar names, so you’ll just be joining the crowd. Remember the original purpose of the “brand” was to distinguish your cattle from those of all the other ranchers in the valley!
  2. Also avoid common surnames and geographical names for the same reason.
  3. Logos, symbols or other pictorial trade marks used in combination with a name can be useful to make otherwise non-distinctive names more distinctive.
  4. Always have searches undertaken first. Never just start using a name or a logo as you could end up infringing someone else’s brand rights. You can do basic online searches to find obvious clashes, but there is no substitute for briefing a trade mark specialist (attorney) or a lawyer who knows what he/she is doing to get searches done.
  5. If the brand name used on your products/services overlaps with your business or company name, that’s fine, but don’t assume that because you have registered a business name or a company name that you’ll get any protection from having done so.
  6. The only real way to get protection for your brand is to register it as a trade mark under the Trade Marks Act. This is Commonwealth legislation that gives you Australia wide protection, once you are registered.
  7. Registration of your trade mark will make your ownership of the mark more secure and will make it easier to prevent infringement by others.
  8. Registration will also make the mark more tangible, and if you ever want to sell your business, you’ll have more to offer the buyer, who’ll want to know that the pile of money he’s paying you for goodwill is actually tied up with a registered trade mark! Equally, registration will make licensing or franchising your brand to others more straight-forward.
  9. The cost (including government fees) is not excessive and there are now procedures that you can use to expedite the registration process, so it need not take so long to be secure in the knowledge that you own and have protected your brand.
  10. Trade mark registration, done properly, is an art. DIY at your peril; get an expert!
  11. Make sure you always use the warnings TM (if not registered) and ® (if registered). This is not compulsory but a good way of warning pirates off and of ensuring that your brand does not become “generic”.
  12. Enforce your trade marks – your profits and the value of your business, will dilute if you allow pirates to get away with it!

Watch this space – next time we’ll expand on the IP theme and develop an action plan for copyright. m

Matt Crouch is a parter in Hodgkinson McInnes Legal. He can be contacted via email – matt.crouch@hmclegal.com.au.