Your trademark is literally the official “mark” of your trade, distinguishing you from all other businesses. But registration of your trademark is not enough. You have to use it or you could lose it.
Your trademark is a powerful business tool, providing strong and exclusive rights to your brand name, so potential customers will come to recognise the image that symbolises your products and/or services. Registering your trademark also entitles you to other rights, such as allowing others to pay for a licence to use your trademark.
But you need to protect it and for your trademark to be a strong and effective tool, you must ensure that you:
- register it;
- use it within the allocated period; and
- protect it from infringements or malicious use.
Making your mark: the registration process
IP Australia is the official government agency for registering a trademark. To apply for a trademark, you must not only have an original logo, you must also demonstrate that the trademark will be used to represent an active business.
When the registration is finally approved, it is yours indefinitely for as long as it remains in active use. You must renew the registration every 10 years when IP Australia notifies you that the renewal is due.
Marking your territory – making use of your trademark
Once you register a trademark, you must use it to promote and symbolise your business. It is in the public interest that trademarks are only registered when they are to be used, so you cannot keep a trademark registered without demonstrating your intention to use it.
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If you have not made use of your trademark within three years of registration, the trademark may be removed from the register. To prevent it from being removed, you must be able to prove that you are in the process of establishing the trademark as part of an active business.
Why do they do this? Many reasons but, for example, this helps to prevent someone “collecting” trademarks that may be affiliated with someone else’s business, and registering them with the sole intention to sell to the other businesses or people to make money.
It’s not enough to have the intention to use it: you must to be able to show actual obstacles preventing you from using the trademark and that you were actively working toward using your trademark in the very near future.
Unless you have good reasons to have registered but have not yet used it, it may be struck from the trademark list. Reasons such as personal illness are not adequate to defend non-use, so make sure you have strong arguments to defend your lack of use of your trademark.
They are not trying to work against you or your business but the non-use discretion to remove a trademark from the register is exercised for the benefit of the public at large. If this were not the case, many people and businesses may be inclined to register numerous trademarks for no reason and with no intent to use them. By expunging trademarks that have not been used, it allows greater scope for registering new and original trademarks. This means the availability for your potential trademark acceptance is higher.
Protect your territory
The best way to protect the unique quality of your trademark is to:
1. Display it widely
Your trademark should become synonymous with your growing business. The more you associate this symbol with your business, the less likely someone else can infringe upon your trademark.
2. Consider international registration
If you are growing and expanding into other countries, you should consider international registration. There are a number of countries that belong to the Madrid Protocol and more information on this can be found on the IP Australia website.
3. Watch out for rogues
It is extremely important to ensure that you only deal with the official IP Australia office to register your trademark. Many rogue companies access the IP Australia register to obtain your address and offer IP-related services such as renewals and registrations for overseas directories which look similar to IP Australia services. Ensure you are only dealing with IP Australia.
Don’t wait around to find out that you have lost your trademark. What are you waiting for anyway? Use it or lose it!