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这个讲注册商标的重要性及注意事项的。
TRADE MARK BASICS
All businesses should have a registered trade mark. As a minimum, the business or main brand name should be registered:
eChoice® Finance
This is the only way to stop others from copying names, logos, slogans or other things.
Business name registration does not work.
Many people think that registering a business name means that it is protected and it stops other people from using the same business name.
It doesn't!
Registering a business name is almost useless for protection purposes. Firstly, each state is different. Registering "Ultrashine Carwash" in Victoria does not stop someone else from setting up their own "Ultrashine Carwash" in NSW.
Secondly, it does not stop someone from registering a very similar name - even in the same state. Examples are "Ultrashine Car Cleaning" or "Ultrashiny Carwash". The only real function business name registration has is to notify the govenment of the owner of the business.
The same applies with company (ie. Pty Ltd) names.
What happens if clients do not register a trade mark?
If Ultrashine Carwash is not registered as a trade mark, it is very expensive and difficult to stop someone else from calling their business exactly the same name.
Legal advice would probably be like this:
You do not have an automatic legal right to stop anyone else from using the name "Ultrashine Carwash". If you want to stop the other company from using the same name, you will have to sue under "Passing off" law. This law requires us to prove to the court that you have a strong reputation attached to the "Ultrashine Carwash" name. This means expensive surveys and paying for expert witnesses. We will also have to spend at least several days in court trying to convince a judge that the other company is piggybacking your reputation. Each day in court can cost upwards of $20,000. A Passing Off case can easily cost at least $100,000 or more and there is no guarantee of winning.
What happens if you register a trade mark?
When a business registers "Ultrashine Carwash" as a trade mark, it will have the automatic legal right to stop anyone in Australia from using the name. It will have the right to sue the other company for "Trade mark infringement" not "Passing off" law.
All it will need to show the judge is that it has registered the name and that the other company is using the same or a similar name. The court is likely to order them to change their name and to pay compensation money.
Because the other company's lawyer will tell them this, the case is unlikely to even go to court, and they are likely surrender very quickly. The only time the case will go to court will be if competitors genuinely think that they have used a very different name (ie. "Extrashine Car Care") and they are willing to pay the legal costs to fight the case.
A settlement is much easier to achieve.
Most importantly, when businesses have a registered trade mark, they can use the symbol ®. Just by using this symbol, most copycats are scared off so they may not even have a problem to begin with. In our experience, it reduces copying by at least 60%!
Our recommendation
It is very important for businesses to register everything that they do not want others to copy.
This can include:
• Name
• Packaging
• Logo
• Colours
• Slogan
• Sounds
• Shapes
• Smells
Because trade marks are powerful tools, businesses need to choose their trade marks lawyers carefully.
http://www.choylawyers.com.au/protecting_brands.htm |
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