Do I need to trademark my brand?
Clients often ask whether they “need” to trade mark their brand. However, there’s usually a different question that they really want to know the answer to.
The question (or questions) they really want answered are:
“Is it worth spending my time, effort and money registering a trade mark? If I do, what are the benefits to my business and if I don’t, what are the risks?”
So, in this article, I’m going to try to answer these questions for you.
But, before we start, I just want to say that this isn’t a general article about trade marks. I’m going to assume you have some basic knowledge about trademarks and what they do. However, if you need some more background knowledge, please have a look at this article on Trade Mark Essentials.
We’ll come back to the time, effort and money involved in making the registrations later. To start with, I want to look at some of the benefits of registering a trade mark and the risks of not doing so.
Protection against infringers
First and foremost, trademarks help you protect your brand against infringers (that is anyone using it, or something confusingly similar to it, without your permission).
Without a registered trade mark, stopping infringers is much more difficult and there are two major hurdles you need to overcome before you can start legal action (a process known as “passing off”).
First, you must prove you have a strong reputation for your use of your brand. This is because you won’t have the exclusive right to your brand that a trade mark gives. You need to prove that people are buying your products or using your services on the strength of your brand and its reputation.
As you can imagine, this can be almost impossible for a start-up business or any business with a new brand.
Next, you have to establish that your customers were confused as to who they were buying from. You will need evidence to prove that someone bought the infringing product or used the service, mistakenly thinking it was yours.
Then, of course, you need to show that the infringements have caused you sufficient losses to make the risk of taking legal action worthwhile.
Obtaining all of this evidence can be extremely difficult. Your customers may be very reluctant to get involved in a court battle and appear as witnesses in a dispute that they have no interest in and does not benefit them. And, you may not know the true extent of lost sales that the infringer has caused so assessing the economic risk becomes much harder.
When you have a registered trademark, you don’t have these problems. It’s much easier to stop an infringer because you only have to prove that your brand is being used without your permission. You don’t have to prove the strength of your reputation or that there was any confusion on the part of your customers.
So, you need far less evidence which significantly increases your chances of reaching a favorable settlement with the infringer or winning a legal battle against them.
A trade mark infringement claim also costs a fraction of the amount that a passing off claim would cost to pursue (the process for pursuing a claim for infringement of an unregistered trade mark).
This means it’s far more likely to be worth your while taking legal action and an infringer will know this too. So, having a registered trade mark can act as a good deterrent against infringements happening in the first place.
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