It’s a question many people ask themselves when they are starting a new business – “do I need to trade mark my business name or logo?”
The short answer is no; you don’t.
But SHOULD you trade mark your logo or business name? The answer to that one is a bit trickier.
Trademarking vs. Registering a Business Name
Before we take a deep dive into that, I’m going to clear up one aspect of the whole trade marking thing that sometimes comes up when I’m working with start ups. Registering your business name isn’t the same as trade marking your business name. In order to do business in Australia you need to first apply for an ABN (Australian Business Number). Then register your business name with the Australian Securities and Investments Commission. You don’t need to register your business name if you want to trade under your own name, but you still need an ABN.
This registration with ASIC is really just a case of registering to trade – letting them know you’re there and you’re legit. It doesn’t provide you with any ownership or protection of your name (or your logo). And it doesn’t guarantee that you aren’t infringing on someone else’s trade marked business name.
When you trade mark your business name or logo (or another aspect of your business) you obtain the exclusive legal right to use it. Registration of trade marks is done through IP Australia and involves an application process. There is also a fee for each business class you wish to register your trade mark in. Their website is full of great info and also has a search feature so you can check whether the thing you want to trade mark has already been trade marked.
To Trademark or Not To Trademark?
Which brings us right on back to the question of whether or not a small business should trademark their name or logo.
There are a few things to consider. Top of the list when starting a business is usually money. According to ASIC, it costs roughly $250 to apply for a trade mark. And that fee applies for each class of business you wish to register your trade mark in. Plus if your application is rejected for any reason, these fees are not refundable. So there’s a very real chance you could be laying out some serious dosh to make your trade mark happen. Especially if you need to go through the process more than once.
For most new small businesses every dollar counts and every spend needs to be on something essential. And whether or not a trade mark is essential is going to depend on your circumstances.
Give some thought to what the chances are of someone ripping off the IP you wish to trademark, and what the impact to your business would be if they did. Are you trading under your own name? It’s probably unlikely someone else in your industry will copy your logotype. Does your business only operate in a small local area? Perhaps this means your competition is limited and a clash of interests is unlikely? Do you feel that if someone was to start using the same name or a similar logo that it would be a deal breaker for your business? Or do you think you could recover from a re-badge pretty easily?
Trade marking might also be something you want to do but that you decide can wait until you reach other business goals or milestones. Perhaps this can be worked into your business plan as something you do when cash flow allows. Or when you feel your brand has started to gain some traction and become valuable enough to trade mark.
Whether or not you decide to trade mark your business name, it is well worth checking before you start your business to see if the name you want is already trade marked. Just in case you are inadvertently treading on someone else’s toes! It’s also a great idea to check up on any domain names you might be after at the same time. Although bear in mind registering a domain name doesn’t give you any rights to use a certain business name either. That way you know you have a clear path to the identity you want for your new business, and won’t have to spend time or money repairing any branding mistakes down the road.
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