As a Licensing company which deals with Brands and Trademarks, we often here these two words interchanged in the course of a conversation with a Client. While in some circumstances they can be the same, in a number of instances the elements of a brand are not a trademark.

Let us explain, and this may help you when you are chatting with us to protect your greatest assets – your brand! A brand is cultivated through years of careful planning, structure and communication. It is multi-dimensional, it has values, core elements, a style, a market position. There are rules associated with your brand and how this can be used to engage with consumers.

Of all the elements that compile your brand, there are specific ones that can be Trademarked to protect you from infringers and those who wish to pass off on your goodwill.

So which of your brand assets can you trademark? You may be surprised with some of these elements that are acceptable as trademarks in the regulations of the Trademarks Act 1995 for Australia.

The definition in the Law is that includes the following or any combination of the following: any letter, word, name, signature, numeral, device, brand, heading, label, ticket, aspect of packaging, shape, colour, sound or scent.

It is a really comprehensive list. So now step back and look at all the elements that constitute your own Brand. Do you have a name [word], a logo [device], an unusual aspect of packaging, a specific colour that you use in your market? What about a sound – like a jingle that is absolutely renown as yours? Perhaps your brand is a unique smell.

A trademark is also tangible. It sits on your balance sheet as an asset. For a Brand Owner, this gem of knowledge can help with the value of your company. So perhaps you should really get that trademark programme underway to protect your assets and monetise your brand value.

Untapped Agency offers Trademarks Attorney services and is a Licensing Agent for Brand Owners, Licensees, Manufacturers and Retailers. We extend iconic brands, copyright, music, designs and trademarks into innovative, new consumer products, services and promotions.

It is still staggering to us how frequently we meet Business Owners who do not deem it important to register their brand as a Trademark. You spend all day building your brand, creating a reputation, managing its presence in the market. Why not protect this hard work? And when we share this list, they can not hide their surprise. So here is a quick download of all the reasons why you should.

Just because you own your business name, a cool logo and have a domain name does not mean that you are protected from other businesses who want to promote themselves the same way. Registering you trademark is the fastest and most cost-effective way to gain legal exclusivity for the use of Your Name and Your Logo.

A brand has more financial value when it is is a Trademark. Yes, goodwill sits in your Balance Sheet but a Trademark is also accounted for as an Asset. Woohoo! Trademarks can help you value-up your business if you intend to sell it.

Trademark registration affords you that extra level of protection over your brand and increases your rights against those who infringe on on it.

Only a Trademark can be infringed upon and you are protected by the Trademarks Act 1995. When another person uses your trademark they are passing off and it may also be misleading and deceptive conduct under the Competition and Consumer Act 2010. If you don’t have trademark registration then your only protection is Consumer Law.

The Trademarks registry is published online for anyone to view so it becomes difficult for an infringer to deny they had any knowledge of your mark.

Once you have a registered mark, helps to make it more difficult for future registration of confusing or conflicting market. You can oppose the registration of another mark which you feel may be confusingly similar to your registered mark.

If you do find a person using your mark, then can start the process with a “cease and desist” letter. If this needs to escalate, the process to take a person to court under the Trademarks Act 1995 is less expensive than for owners of unregistered trademarks as you need to prove reputation. This can be time consuming and expensive under “common law” rights.

Registration is for ten years then is renewable.

Your trademark has a defined territory, example Australia, so you can trade confidently and continue to grow your brand’s recognition in its core product or service offering.

You can control the use of your brand and trademark through licensing.

Protect yourself from infringement claims. Using your registered trademarks gives you a defense should another person try and impose an infringement claim on you.

Creating a brand is a really important element to your business value arsenal. Take heed of this list and register your mark with a Trademarks Attorney today.

Untapped Agency offers Trademarks Attorney services and is a Licensing Agent for Brand Owners, Licensees, Manufacturers and Retailers. We extend iconic brands, copyright, music, designs and trademarks into innovative, new consumer products, services and promotions.

With our impending elections, it is a great time to consider whether one of our politicians is allowed to use any artist’s song to rally the crowd. What copyright protection does an artist have against your works becoming the battle-cry anthem for a Poli?

Flash to Donald Trump and “Eye of the Tiger” at present. Were you aware that Steven Tyler, Adele and Neil Young (to name a few) all respectfully asked Mr. Trump to cease using their songs? It has been assured that the Trump Team did have all of the licenses through the venues under their blanket music license,so my copyright infringement issues to date.

But what are the copyright rules here in Australia? A blanket music license, such as one sought from APRA AMCOS could be sufficient to allow the song to be bellowed from the speakers at an event. So then there is the question of Moral Rights. Under the Copyright Act, an artist right of integrity authorship allows their “right not to have the work subjected to derogatory treatment” which may eventuate due the “exhibition in public of the work that is prejudicial to the author’s honour or reputation because of the manner or place in which the exhibition occurs” (Section 195AK).

Further, does the use of the song by a Politician then infer that the artist is endorsing the Politician and Political Party? If not, then does this cause misleading and deceptive conduct under Section 18 of the ACL Australian Consumer Law?

It will be interesting to see which songs are selected by our Poli’s as they start the long sprint to the voting day. Will they get it right – the song, the license and the polite and private permission from the artistic authors?

Untapped Agency is a Licensing Agent for Brand Owners, Licensees, Manufacturers and Retailers. We extend iconic brands, copyright, music, designs and trademarks into innovative, new consumer products, services and promotions.

How many times have you entered yourself into a competition which requires a Selfie doing something specific to be eligible? Usually this very innocent with the Competition Host (brand owner) asking to to do something fun or special showcasing their product.

Recently in the UK with travel company Thomson, this competition was no different. In fact, it was lovely. All contestants need do was send in a photo that made them smile. Five lucky winners would then receive a £2,000 holiday voucher.

A winning entrant was from David Bellis with his three year old son Jacob. They posed with a horse in the background. How sweet. They were standing on public land and the horse was on private property. When details of the competition were published, the owner of the horse in the photo (called Betty – the horse that it), the owner claimed they never gave consent for Betty’s image to be taken and wanted a some of the winnings for themselves. She even threatened that David and Jacob be removed as winners of the competition.

So what are the rules for copyright ownership in a situation like this in Australia?

In the Australian Copyright Act 1968, Betty’s owner can not claim ownership of the photo. This is because the photographer – in this case David – owns the photo and may use it for their own discretion.

So here in Australia, is this a privacy issue? According to the Arts Law Centre of Australia, taking a photo from a public place has no restriction on taking photographs of people on private property. Precedence law (Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937)) details that if you can be seen then you can be photographed. So if people who are photographed on their property from a public location have no legal claim against you if what is captured in the photograph can be seen from the street, then could we be a little assumptive that this also applies for our animals?

An interesting situation to consider when you are photographing and posting your life online.

Untapped Agency is a Licensing Agent for Brand Owners, Licensees, Manufacturers and Retailers. We extend iconic brands, copyright, music, designs and trademarks into innovative, new consumer products, services and promotions.