Many businesses revolve around ideas – from creative products and services all the way to the presentation of the business itself, it can be important to protect these ideas in order to prevent imitators from trying to compete for your place in the market, and build the value of your brand. This Intellectual Property, or IP, can be protected through trademarks, with laws specifically designed to navigate the ownership of ideas and the conflicts that may arise from it.
A trade mark is protected for ten years, so when thinking about getting a trademark, it should be a long-term consideration – not just about where your business is at now, but where it might grow to in the future. This time period is set to give businesses the chance to bring their brand and creations into the market and inspire innovation.
Protecting these ideas is a unique procedure separate to the other processes of establishing your company. Exclusive rights to a business name and trademarks aren’t gained through simply registering the name in the first place or setting up an internet domain name with it. A formal registration process with IP Australia – the federal government agency responsible for these matters – would be required if you want that exclusivity. Certain ideas are automatically protected, such as copyrights and confidential information, but for others, registration is ideal.
It is important to consider which ideas are worth the process. After a trademark is registered, if others are profiting off your trademark you may take them to court to set the situation right. This can be a costly process, so when weighing up this process in advance, take into account the profits being made and lost through this trademark. Luckily you don’t need to worry about losing your trademark if this is ultimately deemed an unprofitable move for you, so long as you are continuing to use that trademark. Someone may oppose your trademark if they think you’re not using it, but you will be notified if that happens and given the opportunity to ensure it remains in your hands.
Trademarks do not have to be a matter of sole ownership however. They may be held by more than one person without being weakened, by the use of contractual agreements between employees or others who are part of helping your trademark come to life.
The more specific an idea is, the easier it is to trademark. Surnames can be difficult to register, especially if they are in more common use. It’s not often that trademarks will be enforced if they prevent other people from using the name they were born with. Geographic locations have similar issues: unless overwhelming evidence of use and reputation can provide enough reason for a monopoly, town and region names will frequently continue to be available to many other businesses in the area.
Descriptive words – including descriptions for the types of goods or service and their purpose, quantity or quality, amongst others – can also weaken an application for an IP, but if evidence of use or other special circumstances can be provided, they may carry through.
In the case of visual designs and products, these can also be protected for up to ten years. The design has to be distinctive, and the trademark applies to its visual appearance, not its function – the function of a product would be categorized as a patent, which is protected for a much longer period of time.
Distinctiveness is critical. Even if it is initially approved, a trademark business name which appears distinctive in a niche market may appear threatening to another legal trademark’s position in the market if they decide to expand. It is worth looking ahead and checking out potential competitive brands in industries you are not yet in but may expand to. There are a few tools for looking up competing trademarks, including the Intellectual Property Explorer website, as well as the Australian Trade Mark Search which can be found on the IP Australia website.
Lastly, intellectual property is about the execution of an idea. It may be that you come across others using an idea or design you coined, but taking a different spin on it. In these cases your trademarks may not cover you completely, but sometimes people don’t diverge enough in their executions and may interfere in your standing within a marketplace. These grey areas are another reason why registering trademarks can be so important; it reduces the amount to which this happening might impact on your business and empowers you to navigate such events as best as possible.