I had it first! The perils of operating without a registered Trade Mark

While it comes highly recommended, the registration of your trade mark with IP Australia is not necessary to market your goods or to mark them with your trade mark. A trade mark is a badge of origin or a signal to others that the mark is associated with you or your business. The benefit of trade mark registration is so that you are able to tell to other traders that the mark belongs to you, and that you are able to exclude others from using your trade mark or any mark similar to your trade mark.

Having an unregistered trade mark however does carry a number of risks. In the worst case scenario, a competitor may seek registration of a similar mark and attempt to exclude you from using the mark.

While it is possible to defend your use of the trade mark – after all, you had it first – going through this process can be both mentally and financially draining. In order to be successful at defending any litigation, you would need to show evidence that you had used the trade mark before your competitor used the trade mark. Putting together evidence, especially where you have had the trade mark for some time, can be tedious.

It is no surprise that some traders choose to re-brand rather than contest the issue, however re-branding carries a cost of its own.

When starting up a new business, or using a new logo or trade mark, you should carefully consider whether seeking a trade mark application with respect to the logo or trade mark is appropriate.