Establishing your brand: how to make sure you’re not infringing existing brands trade marks

Branding is at the centre of your business, responsible for attracting customers and differentiating you from your competitors. When establishing your business, it can be important to ensure you aren’t infringing on the trade marks of other brands.

Trade mark infringement is the unauthorised use of a sign that is deceptively similar to a registered trade mark and can result in costly legal fees and a need to rebrand. In this article, we’ll explore how to establish your brand while avoiding trade mark infringement.

Understanding trade marks*:

As we discussed in our previous article, a trade mark is any recognisable sign, graphic design, or expression that identifies your business. A trade mark helps customers distinguish your products or services in the market.

A registered trade mark legally protects your brand and provides exclusive right to use the mark.

Strategies for avoiding infringement:

Conduct a trade mark search:

It’s important to conduct a trade mark search to identify any potentially similar registered trade marks. The purpose of a trade mark search is to identify potential conflicts before you invest time and resources into building your brand. 

You can use IP Australia’s free new tool TM Checker to check for similar trade marks. The tool will give you an idea if there are already registered trade marks that might be like your brand or name in the proposed classes of good and service. Avoid using a trade mark that is similar to an existing mark or could cause customer confusion. 

Register your trade mark.

Once you’ve conducted a trademark search and determined that your proposed mark is not infringing, you may consider registering your trade mark. You can apply through TM Checker, or at IP Australia 

Common mistakes to avoid during the trade mark registration process include failing to ensure what you’re registering is distinctive and isn’t something generic, such as descriptive words or a single colour. You need to make sure your trade mark won’t offend the general public and that you select the appropriate goods and services in your trade mark application.

Monitor the market:

Monitoring the market for trademark infringement can be a time intensive and ongoing task, but there are several steps you can take to help protect your trade mark:

  • Conduct regular searches for your trade mark, including using search engines, social media and web-domain searches. You can also use TM Checker to check for new trade marks being registered. 
  • Keep an eye out for counterfeit goods. Some sellers may try to imitate or copy products and sell them for a lower price.
  • Consider working with a trade mark attorney who can help monitor for infringement.

If you discover that someone is using your registered trademark without your permission, you can take legal action against them. Keep an eye out for our next article in this series for more information on enforcing your trade mark.

Where can I find more information?

Learn more about trade marks

Things you should know

This article is intended to provide general information of an educational nature only. It does not have regard to the financial situation or needs of any reader and must not be relied upon as financial product advice. As this information has been prepared without considering your objectives, financial situation or needs, you should, before acting on this, consider the appropriateness to your circumstances.

*This information is brought to you by IP Australia and is general advice only. For any questions or to learn more about this topic please contact IP Australia or visit https://www.ipaustralia.gov.au/trade-marks 

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