MAKE YOUR MARK BEFORE SOMEONE ELSE DOES

So you’ve had a great idea for a business, hired some excellent staff, and found the perfect site….but how are you going to make your mark?

Mark of a good business

These days a "trade mark" can be anything that distinguishes your business from other traders, including a name, logo, colour, sound, taste or even a smell.

The value of a great brand will often exceed the annual turnover of the business. However, before deciding on a trade mark and launching an extensive marketing campaign, it is essential to ensure that:

You are free to use your chosen brand - your mark should not infringe another trader's mark, as doing so may lead to you being sued or at least prevented from using a mark you have spent substantial amounts in developing.

Your trade mark is distinctive - your mark should be capable of gaining a sufficient reputation that other traders would breach your rights in the mark if they used the same or a similar mark; and

It is therefore important to consult a good patent attorney or intellectual property lawyer when devising a brand and to ensure you adopt the best strategy for protecting and exploiting your trade mark, as well as getting the most out of other intellectual property rights in your business.

Protecting your good name

Despite the potential value of trade marks and their pivotal role in the marketing of any product or service, it is surprising how frequently businesses adopt marks which are non-distinctive and hard to protect and/or fail to take the appropriate steps to own their marks.

Once you have chosen a strong trade mark, it is essential that you establish ownership of your mark through trade mark registration in the markets where you intend to trade.

Many businesses think that registering a company name with the Companies Office and/or registering a domain name is sufficient to protect their mark. However, a company or domain registration gives no automatic proprietary right to a name and different entities can in fact own extremely similar company or domain names. For example Ipol Limited might own the domain name www.ipol.co.nz, which provides trade mark registration services, but another business would be able to register the company name Ipol TM Limited and the domain name www.ipol.net.nz and also provide trade mark registration services.

In addition, although unregistered trade marks may have some protection under common law or the Fair Trading Act, failure to register a mark means that to enforce your rights against another business will require the lengthy and costly process of:

Showing that a reputation has been established in the mark in the geographical area in question; and

Establishing that the trade mark of the other business is likely to deceive or confuse consumers.

In comparison, registering your trade mark may cost as little as $100 plus GST and grant you a national monopoly which can be renewed every ten years

Value of protection

So, what is the answer to that age old question of "What's in a name?" If you haven't selected, cleared and protected the name properly then your brand could be a liability which will ultimately stop your business from growing. Do it right, and you could find yourself owning a valuable brand which you can leverage to expand your business.

By Rachel Dawson