Marketing

Marketing and intellectual property

Introduction

Marketing is one of the key elements to the success of any business. This comprises a well designed product, excellence in service, sound planning, competitive pricing, dependable supply and distribution and well thought out promotion.

Included in the success of marketing any product or service is the brand, its development and management. The majority, if not all of the world's largest and most successful companies are recognised almost immediately on sight of their brand. Just think of the McDonalds golden arches, the pepsi logo and this triggers certain thoughts and ideas in your mind.

Branding

Branding helps consumers to identify a particular product or service or even a business. A "brand" can be a name, a design, a symbol or any other feature that distinguishes a product or service or a business from another.

Some well-known brands include (a) Coca-Cola (b) Mercedes-Benz (c) McDonald's, just to name a few. Brand names (as in the above examples) are extremely valuable forms of property, commonly called intellectual property.

Intellectual Property

In Australia we recognise various types of intellectual property rights, namely: copyright; patents; registered designs; trade marks; circuit layout designs; plant breeder's rights, plus rights in connection with confidential information, trade secrets and domain names.

Some intellectual property rights do not require any formal registration to protect those rights. For example, copyright protection is conferred automatically upon creation of the work. Copyright can attach to say a book or music.

Other intellectual property rights, such as, trade marks do require formal registration in order to properly protect them. Without registration, reference would need to be made to the common law to determine a person's rights. For example, to protect its branding the owners of Mercedes Benz have trademarked the words "Mercedes-Benz" and its associated logo.  

Trademarks are often accompanied by the symbols ® and "TM".

Protecting ones intellectual property rights is not confined just to big business, it plays a role with small business as well. For instance, we often find there is confusion as regards ownership of intellectual property rights when referring to "Business Names". If one registers a Business Name in Queensland it is regulated under the Queensland legislation. It is possible, however, to have the same Business Name registered in say South Australia under that State's legislation. Registration of the Business Name does not of itself provide proprietary interest in those words or any associated logo.

Often businesses establish themselves initially to operate in their local area or State but with success and with the assistance of technology often come opportunities to expand nationwide or even internationally. For example, with the emergence of broadband and its availability to the public, service providers can create virtual shops which include online ordering and payments options.  The restrictions which businesses traditionally had to overcome e.g. distance, mediums for marketing etc are diminishing. Therefore it is very important that business owners not only consider the day to day operating of their business but also take some time to review the overall and long term objectives of the business.

International trademark protection is available in all countries that are members of the Madrid Protocol. If your business expands overseas, you are able to obtain protection for your brand.

If you have developed a brand through say a great Business Name or a particular product and this is of value to you, then we recommend this be properly trademarked to best protect your business.

Quinn & Scattini can undertake appropriate searches, assist with trademark registration and advise you on all your intellectual property rights.  

Raymond Duffy, Associate, Quinn & Scattini Lawyers

If you would like to ask any question about this or any other similar issue Raymond may be contacted on 07 5499 3622 between 8.00am to 5.30pm Monday to Friday or email This email address is being protected from spambots. You need JavaScript enabled to view it..

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