What is Intellectual Property (IP)?
Your Intellectual Property (IP) is any creation of your own, such as a new product or service, your unique business idea, a logo or branding, even written content. IP is an extremely valuable asset and needs proper legal protections in place.
A common way of protecting your IP is by registering a trademark. Trademarking gives you inbuilt exclusive rights if you produce or come up with something new so that others cannot infringe or use a it in an identical manner.
By protecting your ideas or products with a trademark, you can not only gain exclusive rights but also, a competitive advantage and increased business value.
What is a Trademark?
A Trademark is a type of IP that protects words, logos, composites and slogans. For example, “Cadbury” has trademarked the colour purple for the chocolate industry and “Nike” has trademarked the slogan ‘Just Do It’.
A Trademark gives you exclusive rights to use, sell or license whatever you have protected, so no one else in Australia can access or use it. Despite its importance, less than 4% of Australian businesses have one (Source: IP Australia and Business Victoria).
However, if your business operates in more than one country, you will have to apply for a trademark in all countries. For example, a trademark registered in Australia via IP Australia, will only protect you in Australia. If you wish to extend that trademark in the USA, you’d need to submit a separate application to the United States Patent and Trademark Office.
There are two types of trademarks: registered and unregistered. We highly encourage getting a registered one as it gives you full legal protection, whereas an unregistered trademark isn’t as effective if someone infringes. In Australia a registered trademark will last your business 10 years before you will have to renew it again.
The cost to register a trademark will vary depending on how many classes you wish to register in (see more about that below), but it can be as low as $250. This is a minimal fee when the cost of not protecting your Intellectual Property is far worse, considering someone else can steal your name, brand, logo, reputation, content or ideas and profit off it themselves.
It is important to note that not everything can be trademarked, such as common words and phrases, and place names. For example, if you are intending to name your business after the suburb it operates in, you’re going to severely restrict your ability to register trademarks and protect your IP.
To search for exisiting trademarks in Australia, click here.
Source: IP Australia and Business Victoria, 2023
What is a Trademark class?
When you register a trademark, you have to select specific classes that it can apply in, based on the type of goods and services you provide. There are currently 45 trademark classes you can choose from, including 34 for goods and 10 for services. For example, Class 19 specifically only protects goods that are made of non-metal materials for building and construction.
When registering a trademark, you have to pay per class, and you can choose to apply in as many classes as you want. If you don’t select all the related trademark classes for your goods and/or services, you can put your IP at risk, but you also don’t want to go overboard.
Separating trademarks by class means that someone else can potentially trademark the same or similar name to you, just in a different class. For example, two businesses could use the name “Magic Express”, but one could be for a car wash service and one a kid’s toy train. Another example is the popular soap company “Dove” that shares its name with the chocolate brand “Dove”. As discussed above, this is allowed as they’re in different goods classes, and there is unlikely to be confusion between the two distinct brands and products.
If you’d like to learn more about trademark classes, click here!
Why registering your Business Name isn’t enough
A business name is the name you trade under and must be registered through the Australian Government Business Registration Service. If you run a company, you only need to apply for a business name if it is different to your company name.
A company name is a seperate legal entity that has to be registered through the Australian Securities and Investments Commission (ASIC). It will include the legal terms/abbreviations of ‘Pty’ and ‘Ltd’.
A domain name is the internet address (URL) used to access your website. Some examples include ‘google.com’ and ‘aintreegroup.com.au’.
Having a company, business and domain name registered does not give you exclusive rights to use these names. Many business or company owners can come and change one small element (even just one extra letter) and use a very similar name, unless you have it trademarked.
For example, you could have a business called “Camberwell Mowing” that you’ve owned and operated for over 10 years. You’ve registered your business name with the Australian Government Business Registration Service and have a company name registration of “Camberwell Mowing Pty Ltd” with ASIC. “Camberwell Mowing” has become a successful business and you’ve built up brand recognition in your community.
But what if someone else comes along and starts a business called Mowing Camberwell or Camberwell Mowers. They can still register the business and company name because it isn’t the same and, can also register a trademark to protect their IP as you haven’t done so yet.
Although this example shows that registering a business and company name does not give you exclusive rights, it also outlines another issue with trademarking. Both the business names include the suburb, Camberwell, meaning they both can’t actually be trademarked (as discussed above).
How does this affect my business?
A registered trademark will ultimately increase your business value so it is important to include your IP in your business valuation. If your IP isn’t protected by something like a trademark, it’ll greatly affect your business value too.
It can also affect your brand and business name. For example, if you don’t protect your IP, someone else can trademark the same or a similar business name or logo and they will gain exclusive rights to use it, even though you had the business first. This means you could be infringing on them by using your name. If this is the case, you can try to prove that you were using the name or logo first, but it is a difficult and costly process.
Another way this could affect your business is if you try to sell it. Your business value is significantly lowered if you don’t have any of your IP trademarked, and it can lower the appeal for potential buyers. Potential buyers will not want to buy a business that is at risk of having their IP stolen and still needs to be trademarked – which can be time consuming and comes at a cost.
If you have protected your IP, it will show potential buyers that your business is worth something and it was set up properly with all the right legal protections in place. It can also demonstrate that you’ve thought of all the small details and they’ll be buying into a profitable and successful business.
How do I apply for a Trademark?
Once you have checked your eligibility and done your research, you can start the process of applying for a trademark:
- Choose which application service you’d like to use. You can choose between a pre-application service or a standard online application.
- Get the following documentation: ownership and contact details, a copy of what you want to trademark, a list of the goods and/or services your trade mark applies to and payment details.
- Apply for your trademark by creating an account with IP Australia and filling out their application form.
- Wait to see if your application has been successful. If it has been successful, your trademark will be placed on the Australian Official Journal of Trade Marks and the Australian Trade Mark Search for two months to see if anyone wants to oppose it.
If you don’t want to manage this process by yourself, we can help! Our team at Aintree Group Legal are experts in Intellectual Property and Trademarking and offer a free trademark consultation for those wanting to apply.
To learn more about Aintree Group’s own experience applying for a registered trademark, click here!