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Choosing your Trade Mark is not Easy

It is not easy to select the perfect trade mark name for a new business. It can be a long, frustrating and deflating process. It is easy to get attached to a name which you believe is exactly the right fit for your brand but there is work to do before you make the big decision.

Don’t Run into Trade Mark Problems

You need to ensure that your name is available before you invest your time and resources. This means that you should find out whether anyone has a prior right to use the name otherwise you will risk trade mark infringement. In Australia, rights in a trade mark can be established either by use or by registration. At common law, a person who uses a trade mark may acquire rights in it as a result of the good will or reputation acquired in it. You can search search the following data bases to research prior use:

  • Google, Directories such as Yellow Pages and White Pages, Newspapers and Trade Magazines and Publications
  • Company and Business Names Register (ASIC and ABN)
  • Trade Mark Office Records

Keep all your records of use of the brand name as you never know when you may need to prove that you were “the first to use the mark in Australia”.

Choose a Distinctive Trade Mark with “Identity”

Under Australian law no business can claim a monopoly in an ordinary English word that other traders have a genuine right to use because of the descriptive or generic nature of that word. A descriptive trade mark is one which trade mark law considers should be free for all traders to use in the connection with the same or a similar supply because it calls to mind the nature or an attribute of goods or services. Descriptive marks are therefore words or signs that other traders may need to use in the normal course of trade. For example, the phrase THE BEST APPLES in relation to the supply of apples.

Register a Trade Mark and Sleep Easy

It is important to register a trade mark for your name so that you get the right to use it exclusively to identify yourself as the supplier of goods or services apart from all of your competitors. You can stop others from using your trade mark. A registered trade mark can also be a good defence to a “cease and desist letter” that states that you are infringing another’s trade mark.

Coming up with the right name is not easy, and it can take a long time, but think of the beauty in the names Google, Oracle, Intel, and Salesforce. Maybe you can come up with the next great name!

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Disclaimer. The material in this post represents general information only and should not be taken to be legal advice.

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