You might already have noticed how big brands use the trade mark tm “™” or trade mark r “®” symbols at the end of their trade marks. E.g. BRAND NAME ™ or COMPANY ®.
You can use the trademark tm symbol “™” when you want to identify to the market that this is your brand, this is your logo, this is your tag-line to make sure that everyone knows that you are serious about it and are willing to protect it. You can use the ™ symbol on your brand material even if you’ve not yet filed a trade mark application or you have a pending trade mark, but it’s not essential and it gives you no legal rights. You can only use the ® symbol if you have a registered trade mark in that jurisdiction.
How to use the registered trademark r and tm symbol
Once you have a registered trade mark it is strongly recommended that you mark your brand and any products with the trademark r, “®” symbol. This puts others on notice to respect your trade mark, not to infringe it, that you have taken steps to register it with the relevant jurisdiction and will enforce your rights to anyone that offends it or comes too close for comfort.
It’s illegal to use the ® symbol before your trade mark is registered, and can even amount to a criminal offence in some jurisdictions. You should only use the ® symbol when you have registered rights in the trade mark.
Most businesses will use the trademark tm “™” symbol all the way up to final registration of their mark and then once it is registered, then change the symbol at the end to ® . The ® and ™ symbol are typically placed after the trademark name or trademark symbol, either above, below, or level with the name and symbol. You can refer to Progressive Legal’s registered trademark:
You can use the Copyright symbol © on your literary work, website, publications etc without registering the work as you have inherent copyright in your words. Best practise is to identify e.g. “Copyright © 2022 – Progressive Legal Pty Ltd. All legal rights reserved.”
Things to keep in mind when creating your registered trade mark and logo
If you are looking to trademark a symbol or trademark a logo, there are several considerations which are recommended to know for creating either. The most major is that the symbol or logo should simply and effectively communicate your brand and the purpose behind your product or service. For example, if you have a business that offers professional services, you may be inclined to use simple colours and images or include text which lets your audience know that you are a professional service provider. On the other hand, if you are a business that specialises in offering nature and wildlife services and products, like tours, equipment rental or otherwise, the trademark symbol or trademark logo may include symbolism of trees, mountains, or the ocean depending on the businesses’ specialty.
The key for trademarking a logo or trademarking a symbol is to keep it simple and memorable. Almost all successful and internationally recognised logos and symbols contain three or less colours. Furthermore, the choice of colour matters for both indicating to your customers what your business offers, and for attracting customers too! For instance, think of the first fast-food chain that comes to mind; the colours are more than likely red and yellow, right? Well, this is no coincidence. Fast food marketers have learned that our brains associate the colours red and yellow with food and there is even evidence which suggests that merely seeing the colours red and yellow make us feel hungry through the learned association of these colours with food.
The same applies to firms in the professional services sector. Almost half of all fortune 500 companies include the colour blue or are limited to the colour blue. Companies use the colour blue to project a sense of professionalism, reliability, loyalty and trustworthiness. Moreover, the trademark logo and trademark symbol of these firms are mostly “combination logos” meaning that they include a trademarked symbol and an appropriate font. Trademarking a font is not feasible, however the name of a font can be trademarked.
How important is your trademark logo and symbol?
Your trademark logo and trademark symbol are more impactful on your business than you may realise. Logos and symbols are empirically shown to be the most effective identifiers for businesses, and often contribute to a company’s retention of clientele above factors like cost. The idea is that the logo or symbol can act like a beacon for your brand and can offer a visual reminder of what your business offers.
Once a customer has done business with you, they’re far more likely to repeat business than to go with a different business in the same service or product offering area. The way in which customers recall your business, and the experience they had will be through your trademarked logo or trademarked symbol, and if it is memorable enough, it will easily stay in the minds of your customers.
Pitfalls for business owners with regard to trade marks
A common misconception with Australian business owners is that having a domain name through sites like ‘GoDaddy’ or ‘Wix’ offers a form of intellectual property protection akin to a trademarked name, however website domains are not intellectual property. Furthermore, despite having a registered Australian Business Name and ABN, the name itself is not protected to the same extent in which a trademark protects a business name.
Trademark holders enjoy the privilege of preventing others from using the business name for things such as domain names and business names in areas of similar service or product offering / industry. Therefore, the issue that can arise is where a business owner has invested into purchasing a business name connected with a website domain but is prevented from using it for the purpose of conducting business, because the name is trademarked by someone else.
As a business owner, the onus rests on you to ensure that the proper steps are taken to protect your business’ IP and that your business name or other material is not encroaching onto another business’ IP.
One of the classic disputes in the area of IP is when there is a copied, or confusingly similar domain / business name which uses and subsequently offends the complainant’s trademarked name. Unfortunately, this is sometimes done intentionally to financially gain from affiliating with another company’s established trademarked name, as in the well-known case of Lucas Films Entertainment Ltd. LLC v Moxomo PTY LTD. Here, the respondent created the domain name “starwars.com.au” in an attempt to “cybersquat” over its prospective value to the Star Wars Franchise.
It should be clearly made known to business owners that “cybersquatting” of any kind is not tolerated by the WIPO Court of Arbitration, and there is seldom financial gain in holding domain names in bad faith, or in the attempt to extract money from trademark holders as per P. 4(a) of WIPO’s UDRP Policy.
Key takeaways
Registering a trademark are paramount in business. You can protect your business name, logos, tag-lines, and other badges of origin (which are really the business’ IP). It allows you to prevent other businesses from using your IP including any words or names associated with your business, in your industry. You can use it as a shield or a sword.
Shield – to stop others from coming along and trying to register trade marks underneath you.
Sword – to prevent them from trading altogether.
Article contributed by Progressive Legal.
https://progressivelegal.com.au/
About Progressive Legal
Progressive Legal provides practical, skilled and timely legal advice including tailored legal documents to growing Australian businesses. Their goal is to protect their clients, and client businesses, assets and ideas.
They provide expert legal advice in relation to corporate structure, intellectual property protection (including trade marks), tailored commercial legal documents and advice, workplace, and dispute resolution.
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