Your Name & Logo are high-value assets, but are they actually protected?
You may be in for a nasty surprise!
Given one of the essential assets of many businesses, even more so those in the franchising or licensing industry, is their business’s trade name and logo/s, it cannot be underestimated how important it is to ensure the relevant name/s and logo/s have been sufficiently legally protected. (This is both initially and from an ongoing perspective)
Over the years we have seen many people believe that if they register a business name or the company name then they have sufficient legal protection over the trade name and logo/s – this is not true!
Another false belief is that if they paid for someone to create a logo or had help from another who did it to help you out with no expectation of payment that you own the rights. This can be a painful lesson when you find out the value of your business has dropped or a sale doesn’t proceed because you can’t prove ownership.
There are a few processes and protection strategies that can be implemented to not have the nightmare of finding out you have thrown money, time and resources down the drain or have suddenly exposed or devalued your business and you.
Just a few of protection strategies include:
your employment, contractor and supplier documents having IP ownership, rights of use and assignment clauses;
your documents and websites having good terms of use and intellectual property notices;
ensuring that your trade name and any central logos and marks connected to your business are registered as Trade Marks in the specific classes of goods and/or services that they may be used with respect to;
having a watch-out and action plan to ensure no one is misusing your IP and then taking action to put others on notice and/or enforce your rights.
Australia like many other countries has its own trade marking system, which can take from a number of months to years to get from the application to registration stages, and registration is not always guaranteed. Saying this, it is a relatively simple process to check what trade marks are registered and/or have been applied for. Some investigations at the beginning can let you know whether there are any likely roadblocks and work out action plans to deal with this.
There are also various ways to speed up processes, and it should be noted that registration in Australia does not automatically mean registration in other countries. Again there are tricks and traps to getting trade mark protection in other countries that may need to be looked at the same time as when going through any registration process in Australia.
We have seen business owners who have lost sales and opportunities when unable to prove or enforce their rights, as well as those who at great cost and embarrassment have had to change their name and logo (and any materials where this appears) when unable to get registration and/or having to face an infringement action from someone with better rights. As you can imagine this can even be worse when you have granted others, franchising/licensing/distribution/affiliates rights you don’t actually have.
Consequently, given the value your brand and intellectual property have, you should never assume you are protected (or what you think is protected is actually working) and should do regular checks to ensure you have provable ownership rights and your assets are protected now and into the future for the activities you (or your potential investors/buyers) are or are about to undertake.
If you want to learn more, or make sure your business is properly protected then book a call now!
Please note that this is a general and brief update, it does not purport to be comprehensive legal advice of all information and/or relevant to your circumstances. Consequently, specific legal advice for each of your circumstances should be obtained first before taking or not taking any action with respect to this area.