One question we get asked a lot by our clients is whether or not they should trademark their logo. The most obvious answer is yes—it’s the only way to ensure complete legal protection of your brand assets. But there are a few other considerations that weigh into the debate, and you might find that you’re comfortable with the inherent copyright protection you’re already entitled to.
Why you might need protection
Other businesses, either deliberately or unintentionally, can create a brand identity that’s so similar to yours that it can cause problems for your business—whether that’s poaching your customers by trading on your identity, or causing them to think your business does something other than what it actually does. It probably won’t ever happen, but if you’ve trademarked your logo, your legal right to the design is protected.
Some new business owners assume that the registration of a business name through ASIC means the business name is protected as a trademark. It’s not: other businesses could potentially register it as their own trademark. It might be important for the protection of your business to register your business’s word mark along with its visual identity, to prevent identity issues from impacting on your trade.
Copyright versus trademarking
You have some inherent rights to your branding identity whether or not you trademark it. By common law (decisions in court), your logo is copyrighted as soon as it’s used in commerce. A copyright is a group of rights that owners of creative works are entitled to: it’s the exclusive rights you have to something you’ve created—your identity. This allows you to prevent others from using your work.
However, this can be a grey area, and copyright protection isn’t as strong as trademarking, which can go further by allowing you to protect not just the reproduction of your work, but important names, visual marks, or words or phrases that you use to distinguish your business from its competitors.
The cost of trademarking
Trademarking can be an expensive and time-consuming process. For smaller businesses who perhaps haven’t found their niche yet, it might be worth experimenting with your branding identity until you’re certain about what you represent, and holding off trademarking until your operations and visual style are better developed.
However, the cost can be a statement in itself. If you’re ready to take on the world, registering your logo as a trademark and using the registered trademark symbol ® signals to the market that your business is a valuable asset that’s worthy of legal protection, and that you’re a formidable player in your industry.
Rebranding and longevity
Is your logo design timeless, and is it likely to be a design that you’ll want to keep for a long time? Or will you do what many other businesses do, and rebrand every 5 years or so as your identity develops or needs to adapt to be more contemporaneous and relevant? It might not be worth the investment if you’re likely to rebrand in the near future or you’re experimenting with servicing new markets or a different clientele.
Trademarking across the globe
It’s important to remember that an Australian trademark only protects you within Australia, and not throughout the world. It’s possible to get an international trademark, but the process is very costly and complex, and unless your business is likely to become a global entity, it’s probably not worth it.
Limitations to trademarking
A trademark registration for a word mark ensures protection for the words, in any format, regardless of its design aspects (typefaces, colours, styles, dimensions). However, there are often words describing your business that aren’t registerable, because they’re words that other traders should not be prevented from using. For example, you might use the word ‘organic’ to describe your product, but you can’t own the rights to it in itself, because everyone is entitled to trade in organic products.
You’re also prohibited from registering names or words that are identical or too similar to ones already registered by other businesses—that’s why it’s important to do your homework, and determine whether your identity is as unique as you think it is. You might also have problems registering a trademark if the words are descriptive, offensive, laudatory, or not distinctive enough.
If you want to take steps to trademark your logo, it’s important to get the right legal advice. Intellectual property lawyers understand what’s involved in the process of registering a trademark, and can help you navigate tricky situations like infringements that happen unexpectedly. If your business is your livelihood and an important asset, the cost of good legal advice and formally trademarking your identity might well be worth it.
We recommend talking to our friends at Advii Law for legal advice on trademarking and copyright.