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Can an Unregistered Trademark Be Enforced?

Can an Unregistered Trademark Be Enforced?

Here are some of the problems you may encounter if you don't register your Trademark.

29th November 2018

Intellectual property is a mix of legal protection that is afforded by legal registration, and by the property simply existing in the first place. Trademarks sit somewhere between the two. This is because you may be able to take action against someone who has infringed your unregistered Trademark. However, there’s no certainty that you’ll be successful.

Here we will outline the issues that may arise if you don’t register your Trademark.

You may not even have the right to use it

If you’ve come up with a logo or other insignia for your business, it can be hard to know if you’re inadvertently using the Trademark of another business. Although this may seem harmless, it can be damaging to your business. If customers and those in your industry think you’re using another business’s Trademark, it may lead to perceptions that your business:

  • Wants customers to mistake their business for yours;
  • Lacks originality;
  • Operates unethically.

The reason that Trademarks are so valuable is their recognition value. Customers recognise trusted brands by their Trademarks. Similarly, customers can detect if a Trademark is deceptively similar to an established brand.

Similar to the above, the best way to know if a Trademark already exists (or is similar) is to register it. Doing this will allow you to find out how unique your Trademark is. IP Australia also has a register where you can see what Trademarks are legally protected.

If you’re unsure whether a Trademark you intend to register is too similar to another, an Trademark lawyer can advise you on on whether you can do so.

It will be difficult to enforce your legal rights

If you operate your business under an unregistered Trademark, it will be difficult to prove infringement in Court. If you can prove that the Trademark has significant reputational value, then you may have legal protection under the tort of passing off.

Proving ‘significant reputational value’ can be a costly and time-consuming exercise. This involves:

  • Proving your business’s reputation rests on the Trademark;
  • Proving that the infringer misrepresented the mark as their own;
  • Demonstrating that this has caused damage to your business.

It may be that by the time you take action against someone for using your unregistered Trademark, you’ve already invested a lot of money in it. If this is the case, even if you are successful, your brand’s value may diminish.

If you register your Trademark, you will automatically be protected under the Trademarks Act 1995 (Cth).

A registered Trademark will save you money in the long-term

Registering a Trademark now can save you a lot of legal headaches later. Why spend thousands of dollars on advertisements and promotional materials if you can be barred from using your Trademark? Further, why spend this money if you’re not certain you’ll be able to protect it?

Registering a Trademark attaches value to your business. As your business grows and becomes more successful, so does the value of the Trademark.

Have more questions? Contact a LawPath consultant on 1800 529 728 to learn more about customising legal documents and obtaining a fixed-fee quote from Australia’s largest legal marketplace.

Jackie Olling

Jackie is the Content Manager at Lawpath and manages the content team. She has a Law/Arts (Politics) degree from Macquarie University and is an admitted solicitor in the Supreme Court of NSW. She's interested in how technology can help shape the future legal landscape.