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Trade Marks
4 crucial steps for establishing a new business brand
Chris Baxter
Chris Baxter

Starting a business also means protecting that business for its long-term future. There are four critical steps to take at the very beginning – before you even begin selling – so that you can trade with minimal hassle and maximise on your marketing.

These steps are critical in ensuring your brand is protected and you can market effectively in Australia, and overseas if you so choose to expand the business globally:

1. Be the first to use the brand

Why be original?

If your brand name is original, there can be little contest as to your rights to use and register it. When someone else is using the same or a similar name, the legal waters get a little murky and it can be harder to defend your rights to it…or you may even find someone else claiming your brand name as their own.

If you are setting up a new brand, why would you waste your time and money on a brand name that already exists? The competition is not worth it, and when it comes to the extra marketing and SEO requirements for online presence, it just does not make sense. Even if the other brands are not trademarked, if they already have a marketplace presence then you could be challenged to prove that you were the first to use that name.

2. Be the first to file the trade mark

Why be the first to file?

In Australia, ownership of a trade mark can come from being the first one to use or the first one to register the mark, whichever is earliest.

In a situation where one brand has a clear history of being the first to use a trade mark, disputes can be more easily resolved. This may not the case for business disputes where both businesses are relatively new.

Let’s take the scenario of two similar businesses created within a year of each other. Neither has yet established a widespread reputation or filed a trade mark application and so in order to prove they have rights to a trade mark, one of these companies needs to show how they have used the mark.

3. Be the first to sell your product/service

Why be the first to offer/sell?

Use of a trade mark may be determined by showing that the goods/services under the mark have been either offered and/or sold. A single sale or even showing that the goods/services have been made available for purchase may suffice in showing first use of the mark.

This race to be the first can be avoided by applying and securing registration of the original name from the outset.

4. Other considerations

International trade marks

Laying claim to a trade mark in Australia does not guarantee rights to use the same mark overseas. While you may not have a current desire to expand your product or service to the global market, it is best to think ahead and cover all bases from the start.

So, if your trade mark is not available in America, the United Kingdom, or China (or any other country you might consider trading in), it is worth reconsidering your branding before you have to spend time and money reviewing it when you choose to expand.

A trade mark is different from a trading name and company name, as a trade mark gives legal protection to the brand name whereas the other two entities do not. It’s best to check with a trade mark attorney if you are unclear on this point.

Timing is everything

You do not know what you do not know, but when it comes to trade mark disputes, it is often too late to claim ignorance. The last thing you need is to fight for your business name or exert energy on rebranding due to a cease-and-desist letter.

By starting off on the right foot and creating an original business brand, you can avoid trade mark disputes and better protect your business. As the first to use that brand, first to file for your trade mark you are protecting your business not just for now, but for its future.

For absolute certainty when it comes to these four critical steps, contact a trade mark expert. Professional insight can help you create the strongest brand for your business and can help avoid any nasty surprises when it comes to trade marks as not every aspect of the brand will be able to act ‘as a trade mark’ and grant you exclusive rights.

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About the author
Chris Baxter
Managing Director, Patent & Trade Mark Attorney
Chris Baxter is a Sydney patent and trade mark attorney specialising in software patents, computer patents, medical device patents and engineering patents.

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