What Happens If I Don’t Get a Trademark?

Do I Need a Registered Trademark?

Having an officially registered trademark for your business is not actually a legal requirement.  As long as you are otherwise obeying the legal obligations of running your business, such as having the correct licences, paying taxes and abiding by consumer law, among other things, then you technically do not need to have a registered trademark. And the government will not require you to get a trademark.

However, if you do not have a registered trademark, the legal position is that you do not have good legal rights to your name or brand. You may not even own your name or your brand.

But I thought my business name gave me rights to my name?

The short answer is, no, it does not. When you are using your business name (or URL or company name or brand name) without an official trademark registration, you are using it in an unprotected way. This even applies if you have registered your “trademark” as a business name, company name or URL. You may even be using the “TM” symbol next to your name or brand to try to give it some level of protection, however, the “TM” symbol does not provide protection it merely tells the world “I consider this a trademark” – but it does not necessarily make it so. This is often referred to as a common law trademark or an unregistered trademark.

In all these cases, without you having a registered trademark, another party who has a registered trademark may have better rights to your business name or brand, and then use their trademark rights to force you to change your business name or remove your URL.

A Typical Example

For example, let’s say John opens a hair dressing salon in Melbourne, calls it SUSTAIN STYLES and then duly gets the registered business name for SUSTAIN STYLES. He reads some information about registered trademarks but figures that as he has the business name for SUSTAIN STYLES he’ll be OK.  Two years later, he gets a letter from Fatima, a hair dresser from Sydney, claiming trademark infringement by John because she owns the registered trademark for SUSTAINED STYLES. 

John’s business name for SUSTAIN STYLES would be considered to be deceptively similar to Fatima’s registered trademark for SUSTAINED STYLES, and because John does not have a registered trademark and Fatima does, she can force John to change his business name (and associated shop frontage, website, marketing material etc). A grim situation for John.

John could have saved himself a lot of trouble and cost by getting his name registered as trademark.  And John needn’t have done this the first day he opened his business – he could have done it at any time as (unlike patents) a trademark can be applied for at any time.  The important date would be that he applied for his trademark on a date before Fatima did.

This example shows that the only way you can ensure you own your business name or brand is to have it registered as a trademark.

Take Away Points

• It is not mandatory that you get a trademark for your business name or brand
• A registered trademark is the only way to protect your name or brand securely
• Even if you have already begun trading, it is not too late to protect your name with a registered trademark