If you are building a business or personal brand, you may be able to register your own name as a trade mark. Registered trade marks can help protect your business from those trying to copy your brand. This article explains what a trade mark is, and what may impact the registrability of your name as a trade mark.
What is a trade mark?
A trade mark is used to distinguish the goods and services of a business from those of another. It is an identifying mark of your business, such as a logo, shape, colour or phrase. Registering your trade mark gives you exclusive rights to use the mark as a feature to distinguish your goods and services. It also helps you to enforce your legal rights against competitors and other businesses if they are looking to use or register a similar trade mark to you.
Can I trade mark my name?
Many people register their own name as a trade mark to help protect their brand. This is usually done where a person’s own name is also their business name, or otherwise associated with their business.
Whether your particular name will be accepted for registration depends on whether it is capable of identifying your business and distinguishing the goods and services of your business from others. For example, an application may be rejected where:
- You have a common or non-distinctive name such as John Smith or Jane Doe. This is likely to be rejected because the trade mark will not be sufficiently capable of identifying your particular business.
- You have the same name as a famous person. Many celebrities such as Beyonce or Jay-Z already have registered trade marks of their names. Any attempt to register a similar trade mark will likely be considered brand infringement.
It can be helpful to seek professional legal advice if you are unsure about whether your name is registrable. Trade mark application fees are generally not refundable and costs for accidentally infringing on someone else’s intellectual property rights can be severe.
Who should own the trade mark?
Once you have determined the registrability of your trade mark, it is important to consider who will be its legal owner. Companies will generally register the trade mark under the company name so that the trade mark becomes part of the company’s assets.
If you are a sole trader, your trade mark will be owned by you as an individual. However, you may wish to consider setting up a company and registering your trade mark under the company name. This is to avoid processes of transferring the trade mark to a new entity if you decide to restructure your business later in time.
- Registering your trade mark gives you exclusive rights to the mark and helps to protect your brand against competitors.
- If you are looking to register your name as a trade mark, it must be sufficiently capable of identifying your business and distinguishing the goods and services of your business from other traders.
- Common names or names of famous people are unlikely to be accepted for trade mark registration.
How can Gladwin Legal help?
Gladwin Legal are experts in intellectual property and have extensive experience in advising businesses. We can help with:
- Advising on the registrability of your trade mark
- Drafting your trade mark application
- Lodging your trade mark application with IP Australia
- Providing ongoing trade mark watching services; and
- Drafting agreements which help protect your intellectual property.
This article was written by Ruth Ong.