Trademarks and Copyright: Is it Really Yours?
Think about the parts that comprise your business: the name, your tagline, your logo, the wording on your website, any courses you’ve made… All of these things count as “property”.
But do these things really belong to you? Or are you just borrowing them? What if somebody else starts using them? Are they even allowed to do that?!
If you don’t know the answers to these questions, then you’re not alone!
In this article, we’re diving into trademarks and copyright: what they are, what they protect, and when you’ll need them.
Trademarks 101
A trademark is a distinguishing aspect of your brand. Anything that differentiates between your brand’s identity and that of your competitors can be considered a trademark.
This could include a word (in a particular font), a phrase, a letter, a number, a logo, a picture, or even a sound or movement, or a combination of these things. Basically, the things you use all the time, that indicate to your customers or clients that this offering comes from your brand.
Registering a Trademark
You might have a registered business name, but that doesn’t mean you have exclusive rights to it. The only way you’ll have exclusive rights is if you have a registered trademark.
A registered trademark is a type of legal protection that gives you exclusive use rights over these elements in Australia.
It’s a common misconception that you can trademark things because you like them—business names, podcast names, course names. But that’s simply not true.
Here’s the thing: Not everything can be registered. It needs to be unique and distinctive—think Coca-Cola, or the Nike tick. Even my own business name, T M Solicitor, can’t be registered, because T M is the acronym for the work trademark itself (and all trademark holders need to be able to use it!), and the word solicitor is not unique to me.
If you can’t register your trademark/s, you might still be able to depending on reputation and use. For example, if someone tries to use your name, and you can prove that you’ve built a reputation on that name and somebody else using it will result in confused consumers, then you may have a case.
How Do I Register a Trademark in Australia?
The first question you should ask yourself is: “How important is it that I have exclusive use of this element?” If the answer is “really important”, then it’s time to seek advice from your business lawyer about whether you can apply.
That’s because the process isn’t particularly straightforward. There’s a lot of criteria you’ll need to meet, and then you’ll need to consider what class/es to apply for the trademark in. There are more than 50 classes to choose from, so you need to be crystal clear on where your business fits. If you get this wrong, it’s not easy to put right—you’ll need to start again with another application.
Want a Masterclass in Trademarks?
Masterclass #5 in The Legally Empowered Entrepreneur Series, Trademarks: What You Need To Know Before You Apply is for you if you’re a small business owner (service-based or e-commerce) who wants to know whether you ought to be applying to protect intellectual property in your business by applying for a trademark. Grab it here.
Copyright 101
Things protected under copyright include original works made from creative skills and labour, like writing, music, and artwork.
Unlike a trademark, you don’t need to go through a registration process for copyright protection. As long as the idea or creative concept is documented on paper or electronically, it’s automatically protected by the Copyright Act if somebody (intentionally or accidentally) copies your work.
So if your business produces design, photography, music, art, blogs, and so on, then it’s automatically protected.
But having said this, it’s still important to provide notice of your copyright in your Ts & Cs, especially if you have other collateral like pamphlets or downloadable resources.
Key Takeaway: Know what you own (and what you don’t)
Fully understanding what belongs to you leads to more confidence in your business and decision-making.
If you think you have exclusive use of a particular element and it turns out you don’t, it can be truly heartbreaking. So arm yourself with knowledge to protect your business and your legacy!
For more on protecting your intellectual property in a competitive marketplace, check out this article.
And for business owners who want the low-down on small business legals, check out our more comprehensive guide: Legal Advice for Small Business | Ultimate Guide.
Has reading this raised questions for you? Book a free chat.
