A trade mark registration can act as both a ‘sword’ and a ‘shield’. Sword - it provides your business with a legally enforceable right to stop a competitor that has copied your brand anywhere in Australia. Shield - it is a defence to allegations of trade mark infringement brought against your business by a competitor. A business name registration does not provide these benefits. It is merely a government requirement for trading.
A trade mark registration is also a key asset of your business. It is an intangible asset which can be valued and sold. It can be sold separate to your business or it can sold as part of the sale of your entire business. Because a trade mark registration is an Australia-wide right it can increase the value of your brand as part of any sale. A trade mark registration can also be licensed and become a revenue generating stream for your business.
Key to any trade mark registration strategy is conducting searches to ensure your chosen brand can be registered and also is not infringing the rights of another. This involves searches of the trade marks register to determine if another party has prior registered or common law rights to your proposed brand. Investing in a trade mark clearance searches can minimise the unwanted and often costly risk of being sued for trade mark infringement.
The marketplace is now a global marketplace. Trade mark registration can and often should be sought in at least a business’ key markets or future markets. The earlier this is done the better. It potentially avoids the unpalatable scenario where a business is not able to sell in a key market under its brand because another business already has the brand registered in that country. For this reason there are also benefits in conducting a consolidated trade mark clearance search not just in Australia but simultaneously in key markets of interest.
