If you decide to obtain a Trademark yourself consider the following and remember that prevention is better than cure.

If you want to obtain exclusive rights to your business name through trademark registration there are some not-so-obvious traps that you should avoid falling into if you decide to file a trademark application yourself.

Five common reasons why your trademark applications may be rejected:
1. The trademark is not distinctive of the goods/services
2. The trademark is a generic term
3. The trademark is similar to an existing trademark
4. The trademark is a common name
5. The trademark describes and/or is deceptive about the origin of the goods/services

If you are not familiar with a legal process, you may not follow through to registration. Some common errors include:
• A specialist search is not done prior to filing, therefore on examination of the application, an existing similar mark is raised as an objection because it is too close to the owner's brand
• The business owner does not know how to respond to the examiner to overcome the objection
• An objection has been raised by the examiner which cannot be overcome because the application should have been filed in a different way i.e. the business owner is unaware of other possible strategies involved in filing an application
• The business owner does not monitor important dates during the application process
• The business owner does not understand the phases of the application process and does not pay the registration fee when necessary.

The basis of one person, business or company having exclusive ownership of a brand or trademark is that it is unique. Examples of unique brands would be Subway or Optus, as they neither indicate goods nor services.

Exclusive rights to a generic word cannot be trademarked: for example the word ‘computer'. While a generic term can be included in a trademark i.e. Apple Computers, you will have no exclusive rights in the generic term, only the name.

If you are trying to register a mark that is similar to an already registered one in the same industry, the application will be rejected. If a trademark is likely to cause confusion in the marketplace as to ownership of the goods/services, the second applicant will not gain registration either. However, if you are in a different industry you may be able to obtain the registration. A perfect example is the Midas brand. There is Midas Shoes and Midas Auto Service; same name, very different industries.

You will probably get objections if the trademark contains a surname which appears more than 270 times in the Australian Electoral Roll; Brown's Hairdressing, for example. So, either change your name or get creative!
If you are serious about getting exclusive rights to your business/product name and want to avoid the many pitfalls, get help from a trademark specialist or consult an IP lawyer before you start spending, you never know, your one little idea could turn into a multimillion dollar international business.

Take it one step at a time but ensure your base is ready for prosperous growth.

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By Yolanda Vega and Suzanne Harrington