If you have a new business or are re-branding an existing business, or you simply want the peace of mind that you own the brand you have been using for a while, a brand clearance search is recommended as the first step.
To attempt to clear your brand for use, we will conduct searches of the trade marks register and other registers to see if there is any use of your brand or a similar brand by other businesses for the same or related products to those that you intend to sell under the brand.
From the results of such searches and applying the principles of trade mark law and practice, we can assess whether your use of your brand is in breach of any pre-existing trade mark rights owned by others and advise you accordingly as to whether using the brand will expose you to action for registered trade mark infringement under the Trade Marks Act 1995 (Cth).
The other registers that we will look at to clear your brand for use include the business names register, company names register and domain name registers. We may also conduct searches of Google to see if there has been any use of the brand in relation to the same or related products to those on which you wish to use the brand. This may alert us to existing interests in the brand and allow us to report on them and the threat, if any, they may pose to your use of you brand, in particular to the possibility of any action under the law of passing off and the law relating to misleading and deceptive conduct under the Competition and Consumer Act 2010 (Cth).
Based on the results of our brand clearance investigations we can provide our recommendations on the next step, which may be to apply to register your brand as a trade mark or, immediately cease use of your brand (to avoid exposure to legal action) and select a different brand.
As indicated above, the consequences of not having your brand cleared before use or application is that you may expose yourself to legal action by the owner of the same or similar brand, which may result in legal action against your use. Costs will be incurred in resolving that matter – see Disputes on the Marshall Legal website and financial compensation may be requested from the owner of the brand, if you have used the brand to the detriment of the owner of the brand.
However, in the large majority of the cases, the real and hidden cost is that of de-branding your business and then re-branding your business. The extent of this will depend on your business. It could be as simple as changing the name on your website and your domain name or, more likely, as extensive as re-doing signage, product packaging, vehicle decals and wraps, uniforms, business stationery, TV advertising, changing all directories (physical and digital), and most painful of all, notifying your customers of your change of name and the mistrust that it can engender.
Call us to CLEAR your brand today.
This is how we've helped others
"Marshall IP Group has been assisting SAI Global with its trade mark, IT and other intellectual property agreements for over 4 years now. They have demonstrated a good understanding of our businesses and services and this commercial understanding is applied to the legal advice and assistance they have provided. They have shown expertise beyond their size and (regional) location and an ability to stand their ground against their City counterparts: you get the quality of a city law firm partner but you are not charged the big city law firm rates. They are pro-active, commercially sensible and this has given me, as a busy in-house Corporate Counsel and Company Secretary, peace of mind in relation to SAI Global’s national and international IP Portfolio and other legal needs. "Read More >
"Marshall Marks has recently filed a large number of trade mark applications for us and has a high level of success in terms of getting marks registered with the minimum of fuss and additional costs. They have well established processes that identify problems early on so that time and money is not wasted on problematic applications and deliver their services promptly in a courteous and professional manner. They have demonstrated a strong ability to handle a large and growing IP Portfolio in the very competitive drinks sector of the market. I would recommend them to any company that wants to get a grip on its IP."Read More >
"Marshall IP Group has been a supporter of the iAccelerate from its very beginnings. iAccelerate is a state of the art incubator for start-ups and early stage technology businesses located at the University of Wollongong’s Innovation Campus. Marshall IP Group’s CEO, Tim Marshall, has provided thorough, thoughtful and insightful contributions to iAccelerate providing informative seminars, workshops and advice for many of iAccelerate’s companies. Marshall IP Group demonstrates a commitment to the innovation agenda for Australia and the Illawarra region. "Read More >
"I am delighted to recommend Tim Marshall and the team at Marshall IP Group for all aspects of intellectual property and technology law. Marshall IP Group fills an important space in the legal market in regional Australia and Australian capital cities. The businesses that I am heavily involved in, RMB Lawyers and Unison Outsourcing, have both enjoyed excellent advice and customer service from Marshall IP Group in relation to trade marking our businesses and protecting our brand."Read More >
"Entering the world of trademarks and IP, as a means of protecting our brand both now and in the future, was met with an unclear understanding of where we could turn for assistance. Tim and his amazing team at Marshall IP Group have made the whole process a hassle free one and we confidently recommend their services to anyone wanting to add value to their brand and business. "Read More >
A collection of informative articles from the Marshall teamSee All
Top 6 IP Mistakes of Start-Ups
Funded Start-Up or Defendant? How you handle your IP could make or break your Start-Up.