Zachary Pagliano, Associate at Redchip Lawyers gives insight into why a business or domain name isn’t a trade mark
Despite what many people think when starting up a company, the simple act of registering a business, company or domain name does not provide any proprietary rights.
Only a registered trade mark can provide that kind of protection.
Evolving technology and globalisation are creating a highly competitive, fast-paced market that operates without traditional borders and boundaries. The number of startups each year is increasing, and the rate at which they are growing is faster than ever before.
It is very often the name and/or logo of a business that will set it apart in this competitive, complex environment. A brand name is generally the first thing a business is known for, and the last thing its customers will remember.
The pedigree and origin of the brand lie in its name. Businesses that fail to build a solid, invulnerable name often unwittingly leave themselves exposed. If a dispute arises and no trade mark is registered, business owners need to prove:
- They have an established reputation; and
- Consumers are being misled.
This can be a hugely costly and difficult exercise.
If, however, a trade mark is registered, the business owner only has to demonstrate that the infringing brand is deceptively similar to its own without requiring external proof. When it comes to naming a business, think of a trade mark as insurance for the future.
A trade mark distinguishes a brand from competitors, encapsulates brand identity and accrues goodwill which attaches to the brand.
Tips for coming up with easily registerable names
- Fanciful– these are easily registerable. Red Balloon and Boost are, for instance, much easier to register than Online Gifts or Juice Bar.
- Invented– think Uber, Twitter, Winja.
- Unrelated– Apple is a ubiquitous example (not related to computers or technology).
- Covert or skilfully allusive – a classic case relates to the mark Tub Happy, which covered cotton garments. The mark connotes that the garments are washable, which is not a direct reference to character or quality of the goods.
For further information and resources to secure brands in a borderless world, contact at protectme@redchip.com.au.
