| All businesses should have a registered trade mark.
As a minimum, the business or main brand name should be registered:
eChoice® Finance
This is the only way to stop others from copying names,
logos, slogans or other things.
Business name registration does not work.
Many people think that registering a business name means that it
is protected and it stops other people from using the same business
name.
It doesn't!
Registering a business name is almost useless for protection purposes.
Firstly, each state is different. Registering "Ultrashine Carwash"
in Victoria does not stop someone else from setting up their own
"Ultrashine Carwash" in NSW.
Secondly, it does not stop someone from registering a very similar
name - even in the same state. Examples are "Ultrashine Car
Cleaning" or "Ultrashiny Carwash". The only real
function business name registration has is to notify the govenment
of the owner of the business.
The same applies with company (ie. Pty Ltd) names.
What happens if clients do not register a
trade mark?
If Ultrashine Carwash is not registered as a trade
mark, it is very expensive and difficult to stop someone else from
calling their business exactly the same name.
Legal advice would probably be like this:
You do not have an automatic legal right to stop anyone else
from using the name "Ultrashine Carwash". If you want
to stop the other company from using the same name, you will have
to sue under "Passing off" law. This law requires us
to prove to the court that you have a strong reputation attached
to the "Ultrashine Carwash" name. This means expensive
surveys and paying for expert witnesses. We will also have to
spend at least several days in court trying to convince a judge
that the other company is piggybacking your reputation. Each day
in court can cost upwards of $20,000. A Passing Off case can easily
cost at least $100,000 or more and there is no guarantee of winning.
What happens if you register a trade mark?
When a business registers "Ultrashine Carwash" as a trade
mark, it will have the automatic legal right to stop anyone in Australia
from using the name. It will have the right to sue the other company
for "Trade mark infringement" not "Passing off"
law.
All it will need to show the judge is that it has registered the
name and that the other company is using the same or a similar name.
The court is likely to order them to change their name and to pay
compensation money.
Because the other company's lawyer will tell them this, the case
is unlikely to even go to court, and they are likely surrender very
quickly. The only time the case will go to court will be if competitors
genuinely think that they have used a very different name (ie. "Extrashine
Car Care") and they are willing to pay the legal costs to fight
the case.
A settlement is much easier to achieve.
Most importantly, when businesses have a registered trade mark,
they can use the symbol ®. Just by using this symbol, most copycats
are scared off so they may not even have a problem to begin with.
In our experience, it reduces copying by at least 60%!
Our recommendation
It is very important for businesses to register everything that
they do not want others to copy.
This can include:
• Name
• Packaging
• Logo
• Colours
• Slogan
• Sounds
• Shapes
• Smells
Because trade marks are powerful tools, businesses need to choose
their trade marks lawyers carefully.
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