How to Protect Your Brand as a Business Owner

by LegalVision - Talia Admiraal

Trusting a brand is important to consumers. Building a reliable and trustworthy brand requires significant commitment and protecting this branding is critical. Registering a trade mark, protecting your website content and monitoring the use of your trade mark are all steps you should take as a business owner to protect your brand. This article will outline these steps and why they are important when developing your brand.

What is a Brand?

A brand is something that helps your customers or clients distinguish you from your competitors. Your brand is not simply your logo; it is a collection of several components including your:

  • name;
  • logo;
  • slogan;
  • design;
  • symbol; or
  • product design.

Your brand is also the personality of your business. It can build goodwill as well as promote the business and increase customer loyalty. This goodwill associated with your brand is often difficult to value. However, it is commonly the most important aspect of a business valuation especially when your business is raising capital from investors or negotiating to sell.

Developing Your Brand

One key aspect of building a successful brand is developing branding that is unique within your industry. The most well renowned brands are those who have promoted new words, themes and images. In Australia, some famous unique brands are:

  • Crown;
  • Telstra;
  • Bunnings;
  • Finish;
  • Vegemite;
  • Panadol; and
  • Cadbury.

These brands all have one key element in common - they do not describe the goods or services that they provide. The best brands are distinctive and not descriptive, ensuring that they are memorable.

You may engage a branding agency or graphic designers to assist you in developing your new branding. If you do use third parties, it is vital that you have agreements in place that set out the terms of the relationship. It is important to agree from the outset who will own the intellectual property. Ideally, you will want to own all the copyright in your brand, logo or trade mark and any other graphic images developed for your business as opposed to simply obtaining a licence to use them from the agency. It is best practice to enter into an agreement before any of the parties commence work.

Trade Marks

Now that you have successfully developed a unique brand, you will need to ensure you protect it. The first steps to brand protection in Australia involve applying to register a trade mark. The trade mark registration process is governed by IP Australia, which is a government agency and independent third party. A trade mark is a way of identifying and distinguishing a unique product or service. Once you own a registered trade mark, you then have the exclusive rights to:

  • use the mark;
  • licence the mark to others; and
  • sell the mark in relation to specified goods or services.

Most commonly you would seek to trade mark your business or trading name and your logo. You can also apply to trade mark other aspects of your branding, including:

  • slogans;
  • jingles;
  • certifications;
  • pictures;
  • an aspect of packaging; or
  • smells

Your brand is one of your most valuable assets and without appropriate protection, the value of your brand may be diminished. Once you achieve trade mark registration in Australia, you can use the ® symbol alongside the elements of your brand that you have trade marked. Using your trade mark including the ® illustrates to others that your branding is protected, and others are unable to use or misuse these elements. You can also enforce your trade mark. You may want to do this if another business is using the same or a deceptively similar name, logo or slogan in relation to similar goods or service to those you offer.

Protecting Your Website Content

Most businesses in Australia develop a website. A website is a great tool to:

  • advertise your business;
  • promote your business;
  • provide information about your business;
  • sell your goods or services; and
  • allow consumers to ask questions.

Your branding is usually displayed throughout your website and it is important to protect this. Your website should include a Terms of Use document to protect the content of your website. Terms of Use will outline:

  • warranties;
  • disclaimers;
  • limitation of liability;
  • how website visitors may interact with your website; and
  • intellectual property clauses which dictate how content may be used, copied, transferred or reproduced.

If you publish a significant amount of content on your website, you may wish to set up Google Alerts. You can monitor the web for new postings of specific phrases and have these sent to your inbox. This may help notify you if anyone is copying your content. You can also purchase other programs that can help you detect copied or plagiarised content.

You should include the copyright symbol © on all produced works and the ® alongside any registered trade marks. If you include photographs on your website, it is often a good idea to apply a watermark. Although these steps may not stop everyone from copying your content, it ensures that you have provided clear information that you will pursue intellectual property infringement.

Know Who Can Use Your Brand

In addition to building and protecting your brand, it is important to know who can use your branding. If you use suppliers, distributors or any third party when promoting your brand, you should include how they can and cannot use your branding in your agreements with them. In a licence agreement, you can license your trade marks and branding to a third party and set out how the party can use them. Building your brand and goodwill is worthless if a third party misuses your branding and causes damage to it.

Monitor Use of Your Trade Mark

If you register a trade mark, it may be beneficial to monitor your mark. It is the responsibility of trade mark owners to find and take actions against infringements. There are a number of methods to monitor the use of your trade marks:

  • trade mark monitoring: a law firm or trade mark attorney will perform regular searches of online databases and general searches to find misuses of your marks;
  • internet searches: you can perform general Google searches to find infringements of your marks; and
  • specific trade mark monitoring: this is used when you know a third party is applying for a trade mark and you wish to oppose the mark in the opposition period.

Monitoring your trade mark is useful as it will alert you to early-stage businesses who may not be aware that they are infringing your trade mark. Often these small businesses may be more willing to adapt or change their branding if they are unaware of the infringement. If a third party is purposefully misusing your mark, you may need to take legal action, commencing with a cease and desist letter. Monitoring provides you with an early advantage to catch users of your marks.

Think Globally

Although you may be launching your business in Australia only, if you are selling online or promoting your brand through social media, it is likely that someone overseas may come into contact with you. If you have expansion plans to promote your business internationally or to sell online to a variety of different countries, it is in your best interests to protect your branding internationally too. There are two methods of obtaining trade mark registration internationally.

Madrid Protocol

If you use the Madrid Protocol, you can file one application in as many of the 102 member states as you wish. You will only pay one filing fee and you will pay the relevant government fees for each jurisdiction. This process is cost effective and efficient.

Direct Application

Some countries, such as Canada and Malaysia, are not a party to the Madrid Protocol. In this case, a trade mark application must be filed in each country, directly to their appropriate trade mark body. This process is more expensive; however, as you are filing directly, it can often be quicker.

Once you begin launching overseas, China is an important country to lodge a trade mark application. The Chinese trade mark system operates differently to Australia and includes a first to file rule. This means that illegitimate businesses or individuals may register your brand first. If you are launching into any country in the Asia-Pacific region, it is recommended that you file an application in China to reduce the chances of being impacted by the first to file rules.

Key Takeaways

A core component of any business is developing unique branding, which is no easy task. Therefore, protecting the hard work and goodwill attached to your business's brand is especially important. There are many steps to protecting branding including:

  • registering a trade mark;
  • monitoring and enforcing this trade mark; and
  • extending this protection overseas.

These steps will help protect your business’s goodwill, personality and ensure your customers stay loyal to you.



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