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29 March 2021
Is it worth registering my trade mark?
x Christine Moody

A question I’m regularly asked is: Is it worth registering my trade mark?

The perceived barriers cited are: The business name is already registered and that’s sufficient considering the current company size; and the perceived high cost and time the registration process takes via IP Australia. Before I answer the TM question, I’d firstly like to highlight the increase in the number of trade mark infringements reported in the media lately. 

For example, last week the ‘bun fight’ continued in the courts between two burger companies: US-based company In-N-Out Burgers v In-NOut Aussie Burgers and Down-N-Out (Australian-based companies). And staying with the food theme, there’s also a very ‘sticky situation’ developing over doughnuts WTF Doughnuts v OMG Doughnuts. There are many case studies regarding trade mark issues with many of these potential TM infringements avoided by conducting some basic trade mark checks.

Even if you don’t proceed all the way to trade mark registration, by performing the basic checks, you can have some level of confidence that your brand name is unique and potentially ‘trade markable’. You may also avoid costly legal action and legal costs in the future. And beyond the legal aspects, don’t you want to create and build a valuable and unique brand? 

The top three items on my trade mark checklist are:

1. Resist falling in love with your brand name before completing the basic checks: Many brand names are developed by the founder of the business. They love the name they’ve created and don’t consider other alternatives which is a problem if their brand name is not suitable or available for registration. When you meet with your brand expert, come with an open mind and ready to consider lots of other options.

2. Make trade mark checks part of your brand strategy: With any new brand, brand extension, or rebrand take the time to check your proposal with your brand experts. The time spent on this process means less chance of your valuable resources being wasted, ie, designing the brand’s identity and website only to find out that they can’t be used. 

3. Be prepared to fight for your brand name: It’s not a matter of ‘set and forget’; you need to have processes in place to check what others are using as it’s your responsibility to ensure you’re enforcing your rights. And if you decide to register your TM, it’s not IP Australia’s role to police your rights or launch legal proceedings on your behalf. To best protect your brand, you must conduct regular brand audits to potentially prevent and avoid long, expensive legal proceedings. 

So, to answer the TM question: Is it worth registering my trade mark?

I always respond: Yes, it is definitely worth registering your trade mark. However, before you fall in love with your brand name and rush off to IP Australia, consider completing the basic trade mark checks first. It will save you time, money, and heartache down the track.

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16 March 2021
The top three insights from my brand audits
x Christine Moody

I have been creating, managing, and auditing brands for over forty years. Although every audit is different—as every organisation is different—I find at least three commonalities across every audit. The top three insights are:

1. Brand is the Marketing Department’s responsibility: Brand management is the responsibility of everyone within the organisations and at all levels. If the internal stakeholders don’t understand what the brand stands for, how can they communicate the brand’s point of difference or value proposition to their customers?

2. Over-reliance on social data: While data collected from social media platforms can provide some important customer insights, other sources must be used to truly understand your customer. Regular and consistent primary data collection is an imperative ie, observing and talking directly to your customers. This not only improves customer retention rates but also provides insights leading to both the improvement and development of product and service offerings. 

3. Practising unsafe asset management: The use of unprotected intellectual property and brand identity elements ie, unregistered trade marks or those that have extended beyond the original registered classes. You brand assets (logos, slogans et al) are valuable assets and need protection. It’s also vital your organisation uses the trade marks consistently across all customer touch points in the registered format. 

The outcome of a brand audit is to identify and correct inconsistences leading to the ongoing protection of your brand assets and to increase your brand equity. More importantly regular brand audit ensures your valuable assets remain protected.

For more information: email@christinemoody.com.au or +61 419 888 468.

Christine Moody is one of Australia’s leading, multi-award-winning brand strategists, and the founder of brand management consultancy, Brand Audits and a diverse range of other brands including The Wrap Dress, Poppy Cakes, Designer Law School, and Travel Stitch. With more than 40 years’ professional experience, Christine has helped a diverse client base of local and international high-profile brands with challenging and diverse range of strategic projects—including Gold Coast City Council, Hilton Hotels, Terry White Chemists, International Cricket Council (UAE), Wrigleys (USA), and Become (USA)—to develop, protect, and achieve brand differentiation. She is able to think strategically and beyond the obvious, to deliver outstanding insights to executives at Board, CEO, and Marketing Director level. She is also an author with her first book Designer Law School: Legal lessons for design entrepreneurs published in 2015 after completing her Masters’ thesis: Brand differentiation in the retail sector. Christine has a passion for life-long learning and has completed academic studies in a range of areas including design, communications, business, advertising, creative industries, and law. She is also a Sessional Academic at QUT Business School.