How would you know if the physical assets of your business were stolen? Apart from the occasional item flying under the radar, it’s fairly easy to keep track of your physical assets through regular monitoring and stocktakes. After all, you’d probably notice if something important went missing, right?
While this may be true for your physical assets, when it comes to intangible assets like your trade marks, you can’t afford to wait around until you notice something is up. Unless you know what to look out for, trade mark theft could be happening right under your nose, and the consequences can be dire.
The worst case scenario is known as “genericide”. Genericide happens when a trade mark is violated so often that it becomes generic. Take a moment to think about the terms “Jet Ski”, “Frisbee” and “Esky”. Did you know those names are trademarked? Probably not, and even if you did, chances are that you have used them generically at some stage.
The value of a trade mark is greatly diminished once it becomes generic, because it will no longer be able to differentiate your business from other brands in the market. You need to be proactive about protecting your trade mark, otherwise you risk losing the power and value that it has accumulated for your company.
Monitor use and abuse of your trade mark
There are some simple procedures that you can implement to monitor the use of your trade mark:
- You can set up a Google alert to automatically search for any uses of your trade mark on the internet. Go to https://www.google.com.au/alerts for more information;
- You should regularly conduct your own searches of the internet to check for any unauthorised uses of your trade mark. We’d recommend that you pay particular attention to:
- Websites that are relevant to your particular industry, including social media
- ASIC’s business name register https://asic.gov.au/for-business/renewing-your-business-name/.
- IP Australia’s trade mark database http://www.ipaustralia.gov.au/get-the-right-ip/trade-marks/search-for-a-trade-mark/
You should decide how frequently you want to conduct these searches and make them a part of your policy/procedures, in the same way you would conduct a stocktake.
If you don’t want to conduct these searches yourself, there are also a number of private companies that can perform monitoring and reporting services for you.
Enforcement
You also need to make it clear that you won’t hesitate to enforce your rights, should it become necessary. There are a number of options you have when it comes to nipping any potential infringements in the bud:
- First of all, you should be using the ® symbol to let people know that your trade mark is registered. This should deter thieves by giving them notice of your rights;
- If you become aware of any unauthorised use of your trade mark, you should immediately give the infringing party notice of your rights, and request they cease and desist use of the mark;
- Consider entering into a licensing agreement, whereby you agree to allow another party to use the mark in exchange for a fee or other consideration; and
- If the infringing party refuses to agree to terms that are satisfactory to you, you may be able to commence legal proceedings in the Federal Court.
Depending on the specific circumstances of your business, some of those options may not be appropriate. We’d recommend you obtain comprehensive legal advice before you take any action.
Sajen legal can ensure you are fully informed about your rights and the best methods of enforcing them. Sometimes all it takes is a legal letter to stop thieves in their tracks, but with Sajen you’ll be equipped with a full arsenal of dispute resolution and litigation services which you can rely upon if things turn nasty.