Success demands a strategic plan to obtain the best results from investing in a concept or idea. The plan must look after a unique concept or idea which one relies on to promote and generate income. Original concepts and ideas that is unique such as a letter, a number, a word, a phrase, a sound, a smell, a shape, a logo, or even a signature need protection.
By registering a trademark over a concept or idea, one can have legal protection, ownership, and recognition. A trademark feature is that it can prevent unauthorised persons stealing or using the concept or idea.
CREATIVITY & INNOVATION – A VALUABLE ASSET
As the uniqueness and public awareness of a concept or idea increases, it becomes increasingly important to protect its creativity and innovation. These features in a concept or idea increase the value of ownership. Therefore, it is prudent and diligent to identify and value the concept or idea by registering it as a trademark.
BEYOND A COMPANY, BUSINESS OR DOMAIN NAME
The benefits of trade marking a concept or idea go beyond mere registration of a name. There are broad legal rights of ownership, recognition, and protection, which are not available simply by using a company name, business name, or a domain name.
Owning a trademark secures one’s goodwill and gives protection from others stealing the concept or idea. The protection stops the illegal use by another of a similar concept or idea to that of the existing trademark. A person has limited protection using a company name, or a business name or domain name, and has the following:
This is a separate legal entity registered under the Corporations Act having an Australian Company Number (“ACN”). There are numerous companies with similar names. A company name does not protect the company from others using a similar or identical name. The ACN distinguishes one company from another. A trademark can prevent the use of a similar or identical name.
This is not a separate legal entity. It is merely a registered name, in a particular State, or Territory, that prevents someone registering a similar business name in that region. A business name does not stop a company or the owner of trademark using a similar name.
This is only a registered Internet site address, and can only prevent someone using the same address. A domain name gives no legal ownership over the use of the address. Another person may register a trademark having a similar name.
A legal audit can identify and find concepts and ideas capable of registration, and if one is taking steps to protect and preserve any existing trademarks and legal rights or if another is infringing existing trademarks.
STEPS TO PROTECT & PRESERVE A TRADE MARK
One must exercise diligence to protect and preserve a trademark by:
Using the letters “ ™
” before registration;
Using the letters “ ®
Ensuring the trademark does not become a generic name for the concept or idea;
Objecting to the importation of goods that infringe the trade mark, and
Continually using the trademark (anyone may apply for its removal if not used for 3 years).
PROTECTION FROM PASSING OFF
The law relating to passing off exists to:
1 Protect the name, goodwill, and reputation of a trade mark owner resulting from the use of the trade mark, advertising, or images which the public associate with the concept or idea, and
2 Prevent the illegal use by another party of some or all the features of the concept or idea.
REPUTATION & GOODWILL
Reputation and goodwill are important in establishing concepts or ideas that are unique. One can create a link between the name, goodwill, product, and the business by using packaging or images created in the course of advertising to distinguish the concepts or ideas and create a trademark.
A trademark owner must protect a new concept or idea and aggressively market its link to the trademark. If it does not, it runs the risk that imitators will take advantage of its novelty before it has built up a distinctive reputation.
Deception may occur if someone attempts to represent a concept or idea as his or her own, or when someone takes advantage of a special characteristic attached to a concept or idea, such as its origin or quality. One has legal protection from this infringement if one party uses marketing devices or other means, either obviously or covertly, to imply there is a connection, association, or sponsorship to another’s business.
DAMAGES & REMEDIES
One may obtain proper redress for any loss suffered due to deception or passing off. However, it is necessary to show an actual loss or the real prospect of loss. For example, a loss arises from the devaluation of goodwill due to loss of trade, or a loss arising from a failure to capitalise on the goodwill.
The primary remedy is to stop the other party passing off the concept or idea as its own. The amount of compensation recoverable from an offending party depends on the type and degree of loss one suffers.
NEED MORE INFORMATION
Behan Legal assists and advises on these important issues. For an appointment, call 03 9646 0344