Benefits Of Registering A Trademark For Existing Businesses


If you’ve been running your business for a number of years without a trademark registration, are you breaking the law? Fortunately not. Using the trademark may provide you the right to deem it your common law trademark. A common law trademark may be enforceable, but this is not always the case. In the absence of trademark registration, it can be difficult, if not impossible, to enforce your rights.

If your common law trademark is infringed, you’re in for considerable time and money to defend it. For an unregistered trademark, you may need to take action in court to enforce your rights. In putting forward your case, there are multiple hurdles you could face.

Enforcing Your Rights In An Unregistered trademark

If you find yourself in this situation, you will have to prove to the courts that you have a “reputation” in your unregistered trademark. It’s maybe that your reputation and the goods/services attached to it will be confined to the locations in which you trade.

In some instances proving “reputation” can be challenging. You will need to gather substantial evidence to prove that you have a reputation for your brand. Registering your trademark will save you effort and money you could instead be investing in your business.

More Benefits of Registering A trademark

Registering your trademark/s makes it clear to others that your brand/s are protected and you intend to enforce your rights. By going through this process, your trademark will be on the trademarks register, and anyone searching the register will be able to see you have rights. Registering your trademark also gives you the right to use the ® symbol, so it’s clear to everyone that it is a protected trademark.

The bottom line is that if you are on the database, it will likely prevent someone else from registering the same or similar trademark to you, and your goods and services and brand offers in your category will be safe. If you’re nowhere to be found on the public register, it is harder for others to determine your rights (if any), and you may find competing businesses using the same or similar brand names, and, even find others are able to register (and therefore use) substantially identical trademarks.

That’s not to say your competitors would be actively attempting to use similar marks to yours; they may do it inadvertently. They may never have heard of your business or brand, but coincidentally try to register marks similar to those you are already using.

Registration also provides you the right to use your trademark for goods/services that you nominated. This means the use of your brand cannot infringe another person’s registered trademark.

Let’s look at some more detailed questions related to trademark registration.

1. Can you register your trademark if someone else has already done so?

Yes, you can, but it’s not always a simple process. If someone has already registered a trademark that you want to register, you need to prove that you are entitled to concurrent registrations, or, if you wanted to remove the earlier-filed trademark you may need to go to court in an attempt to have theirs cancelled. Your case may require you to file evidence of your prior use or concurrent use, and success isn’t always guaranteed. Just another reason to register your trademark earlier rather than later.

2. Do lots of businesses operate with unregistered trademarks?

Unfortunately, they do. The primary reason for this is that they think having a company registered or a business name registered automatically protects their trademark. It doesn’t – the only way to get exclusive rights for the use of the particular name is to register it as a trademark.

3. Can one use the ™ symbol without registering the brand?

It is legal to use the TM symbol alongside anything that you’re using as a trademark in Australia. Of course, you want to be sure your name, logo, or other sign you use is not infringing a third party’s rights. However, the R (®) symbol indicates that your trademark is registered, and you can only use it once you have formally registered the trademark. The use of the ® symbol without registration is an offense according to Australia’s trademarks Act 1995. Some companies simply don’t update their use of a TM to an R symbol once registered. The R symbol, however, is the only way the market can conclusively determine that the trademark is registered.

There are also benefits to using a trademark attorney to file your trademark registration. You want to ensure the application is filed correctly to prevent delays – time and money your business can’t afford to waste. A trademark expert will also assist by receiving, reviewing, and advising on complicated correspondence from the government office. Finally, they will monitor and act on deadlines to ensure they are never missed and your trademark registration goes smoothly.

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