When running a business, it’s important to think about ways to address risk. One thing to address at an early stage is your branding. Does it infringe on someone else’s intellectual property? This article tells you how to check that; and the good news is, it’s not that hard.

Many small businesses think that intellectual property doesn’t apply to them; that it’s only for the big end of town. But the risks of infringement and the costs of rebranding are real for a business of any size. 

This was the case for Sydney restaurant – Fat Duck, a small business which opened its doors in Sydney in 2011. Shortly after opening, the restaurant had to relinquish their name and rebrand their business because celebrity chef, Heston Blumenthal, filed an application for trade mark protection. Intending to reserve the Fat Duck name for his chain of fine dining restaurants, Heston’s company filed a claim in the Federal Court of Australia and won.

This shows that you should check your intended brand early, and that, if you haven’t protected your name or logo against competitors, you may risk losing the rights to it.

So, how do you check? 

You can use IP Australia’s new, free TM Checker tool to search the trade mark register. An initial check only takes a few minutes and will show you anything already registered that might be like your name, phrase or logo in the proposed classes you’ll use your trade mark for. 

If you’ve completed a search and found that your branding is available to register as a trade mark, the next question is whether you should register it. You can apply to register through TM Checker at the same time as your check, or return to do it later.

When deciding, consider these 4 ways you can benefit from registering a trade mark:

• Exclusive rights – you get to be the only one to use the trade mark across all Australian states, for an initial period of 10 years, with the ability to renew indefinitely. 
• Protection – you get a legal avenue to stop others from using your trade mark on similar goods and services.
• Licensing – you get the ability to authorise others to use your trade mark. This is a powerful asset when creating agreements with producers, distributors, sellers or contractors.
• Business value – a trade mark is an asset that can be bought, sold or transferred, which can increase the value of your business.

Research by IP Australia found these other important potential advantages for small businesses that have a trade mark:

• a business with a registered trade mark is 13% more likely to achieve high turnover growth
• after filing for an intellectual property (IP) right, such as a registered trade mark, small to medium enterprises (SMEs) are 16% more likely to experience high employment growth compared to businesses with no recent IP filings
• for businesses launching products, each additional registered trade mark is linked to an 8% revenue increase per employee
• applying for a trade mark is linked to an increase in start-up valuation
• SMEs that own IP rights, on average, employ 3.5 times as many people as their peers with no IP rights and pay a higher median wage.

If you’d like to read more, IP Australia has loads of information for small businesses about trade marks and other important intellectual property rights.

Remember these important reasons for using TM Checker to search the trade mark register. You can:

• avoid infringing on someone else’s trade mark
• check if your trade mark is available for registration
• minimise the chance of someone objecting to your trade mark application
• address potential conflicts with similar registered trade marks before you invest time and resources into building your brand.

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