Owning and operating a small business is the dream of many Australian families. On current figures, there are over two million small businesses actively operating in Australia. It is a challenge to successfully run a small business and deal with customers, competitors, government policy and regulation and financial challenges. One of the key areas that Hunt Lawyers stress to our small business owners is protecting the valuable goodwill and reputation that is built up through operating a successful small business.
It is a common misconception amongst small business owners that if they register the business name under which they are operating that this will give them exclusivity of use and proprietary rights. To the chagrin of many a small business owner, this is not the correct position. A registered business name or company name serves identification purposes only.
Small business owners invest vast amounts of time and money establishing and building their business and creating considerable good will only to have the name taken from them years later because they failed to trademark the business name.
In order to enforce legal ownership over a particular name or phrase, you must be the owner of a trademark. A trademark in enforceable throughout Australia and is ordinarily not restricted to a particular State or Territory. A trademark is a unique mark that attributes ownership and quality to products and services.
Where a trademark exists the owner has grounds to take legal action should their trademark be infringed by another business operating under the same (or similar) name and offering similar goods or services.
Trademark protection can be attracted in two ways:
1. Registration through IP Australia
2. Trademarks that are not registered may be protected under the common law and protected through use of the Competition and Consumer Act 2010 or other relevant fair trade legislation. However, without registration, enforcing your ownership against a competitor can be much more difficult and expensive.
It is not sufficient simply to have registered a trademark. To render a trademark valid, the mark itself must be in use. To demonstrate this, the owner must be able to publically show a clear connection between the trademark and the goods or services being provided by the business or company.
No matter the size of your business and the goods sold or services offered, it is vital to protect the name now before a competitor registers it first. Establishing your business brand correctly will ensure the commercial and financial value of the business is protected. Hunt Lawyers can assist you throughout the trademark application, registration and renewal process.
Corporate and Commercial Law
Level 7, 359 Queen Street,
Brisbane, QLD 4000
P 07 3071 7300
F 07 3221 7515
M 04 1380 7639