You spend years building your business, reputation, and brand so we understand how alarming it can be when you discover that another business is using the same or a very similar name and logo.
Understanding your rights and the legal protections available to you is important to ensure the goodwill and reputation you have worked hard to establish are protected.
What is a trade mark?
A trade mark is a form of intellectual property that can be registered with IP Australia to protect a business name, logo, slogan, or other distinctive sign used in connection with your goods or services.
To register a trade mark, an application must satisfy the requirements of the Trade Marks Act 1995 (Cth). Once lodged, the application is examined by IP Australia to determine whether it is capable of registration. This assessment process typically takes approximately 3 to 4 months.
If the application is accepted, the trade mark is published for a two-month opposition period. During this time, any person who believes they have rights that may be affected by the registration can oppose the application.
Accordingly, if you become aware that a trade mark identical or similar to your business name or logo has been accepted for registration, it is important to seek legal advice as soon as possible regarding your options.
How do I know whether I have rights to a name or logo?
Determining whether you have enforceable rights in a business name or logo can be complicated and will depend on the particular circumstances. However, some key considerations include:
– Have you used the name and/or logo continuously over a significant period of time?
– Is the name and/or logo distinctive or unique?
– Have you developed a reputation or goodwill under that name or logo?
– Has anyone else registered the same or a similar trade mark?
– Can you provide evidence of your use of the name or logo, such as marketing materials, invoices, website records, or social media content?
What can I do if someone is using my name or logo?
One of the first questions to consider is whether the name or logo has been registered as a trade mark.
The Australian Trade Marks Register is publicly accessible and can be searched through IP Australia.
Even if a trade mark is registered in another person or business’s name, that does not necessarily mean you are infringing on a trademark or that you cannot use your business name or logo anymore. Depending on the circumstances, you may be able to:
– oppose a pending trade mark application;
– seek removal of a registered trade mark from the register;
– challenge the validity of an existing registration; or
– apply to register the trade mark in your own name.
The available options will depend on factors such as how long you have used the name or logo, the reputation you have established, and whether the registered owner is genuinely using the trade mark.
What should you do next?
If you believe someone is using your business name, logo, or brand, it is important to obtain legal advice as soon as possible.
Our team can assist you with:
– conducting trade mark searches;
– assessing whether you have enforceable rights in a name or logo;
– opposing trade mark applications;
– challenging existing trade mark registrations; and
– applying to register and protect your trade marks.
If you are concerned about your business brand or reputation, contact our office on (02) 8197 0105 or by email at contact@streeterlaw.com.au to discuss your options and the steps available to protect your intellectual property.
