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Trade Marks
Steps along the way – securing, managing, and enforcing your brand
Chris Baxter
Chris Baxter

Recognise the value of your trade mark

A trade mark has the ability to differentiate your activities from the activities of your competitors, as well as create and secure consumer recognition. It is a key asset of any business; thus, it is vital that your trade marks are secured, used, and protected adequately. Trade marks that describe goods and services are less likely to differentiate and may be difficult to secure and enforce.

Get it right from the start!

A strong trade mark strategy creates a reputation for your brand and therefore needs to be carefully considered. Here are some aspects to keep in mind, which we can guide you in:

  • A trade mark is a sign made up from letter, number, word, phrase, sound, smell, shape, logo, picture, movement, aspect of packaging, or a combination of these.
  • A trade mark should be distinctive and original.
  • A word mark in plain block letters provides strong and enforceable rights over the words regardless of their stylisation.
  • A logo will provide protection of the overall impression of the image, and while it can also include words, the words themselves are not protected (as in the case of word marks).
  • Having goods and services that you do not intend to trade in just to have a “longer” specification can lead to removal actions being filed against your mark.
  • Company name and business name registrations are not trade marks and thus do not confer any IP rights.
  • If a logo is being used, you need to own the copyright for that work.

Some helpful examples of distinctive trade marks are invented words, such as IKEA or Häagen-Dazs, whereas a mark like ORANGE for orange juice is descriptive. At Baxter IP, we can advise you in the creation and management of your brand so that your portfolio is complete, strong, and enforceable.

Use it correctly

You have gone through the application process, and you are now on the other side: you have trade mark registration! It is not over; you need to use your trade mark. A critical element of maintaining your marks is being consistent in their use. A trade mark in Australia may be removed if it has been on the register for five years and has not been used for a continuous period of three years.

It is relatively easy and inexpensive for a third party to file a removal application of your mark; therefore, it is important not to give them the opportunity to do this. Make sure of the following:

  • Use your trade mark as registered; avoid variations that can create risks.
  • Use the ® symbol.
  • Use your trade mark for the goods/services that it is registered for.
  • If you are expanding your brand and changing logos, consult with us to ensure your current registrations protect you correctly or if new filings are needed.
  • Keep records of the use of your trade marks.

Keep an eye out

Effective enforcement of your trade mark rights will ensure that your brand keeps its value. Therefore, it is important to monitor the market and make sure no third party is taking advantage of your IP rights. If you notice someone is using a trade mark which is identical or similar to yours, we can assist with the following:

  • Identifying the potential infringing conduct and options
  • Preparing and sending letter of demand
  • Negotiating with the other side

On the other hand, if your business has received a letter of demand indicating that you have infringed on someone else’s right, we can assist by providing an immediate and effective course of action for responding.

Takeaway points

Brand protection is one of the most valuable assets to your business, so make sure that you consult a trade mark specialist to assist you in choosing a strong and tailored trade mark and specification, which will ensure stronger rights over your brand.

Using your trade mark incorrectly can lead to failure in enforcing and keeping your trade mark registration; therefore, you should be consistent in your use of your trade mark.

Enforcing your rights will keep your brand strong.

At Baxter IP, we have a team of highly specialised trade marks attorneys that focus in assisting our clients in their branding strategy and portfolio management relating to the commercial exploitation of their goods and/or services. We can assist with the following:

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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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