Loss of Trademark Rights: Causes and Prevention Tips

Category: Trademark Information

Many people think that a trademark is nothing more than a symbol attached to a brand. Contrary to popular belief, a trademark isn’t just a logo. It can be a letter, a phrase, a sound, a photo, an aspect of packaging or a combination of those different aspects. Trademarks exist to give you exclusive rights to your intellectual property, making it easier for you to stop others from using it and profiting off your hard work. They also increase the value of your brand to potential customers and protect your business from infringement claims.

Is it possible to lose my trademark?

According to Trade Mark Law, you must use your trademark actively or else it can be removed on the grounds of non-use by an interested third party. This is to discourage traders from registering multiple trademarks for the sole reason of preventing others from using them.

Aside from lack of use or abandonment, here are two common ways that you can lose your trademark:

  • A trademark that’s too generic – An overly generic trademark is when the mark is no longer inherently distinctive and cannot be identified exclusively with the product or brand in question. A trademark’s distinctiveness allows consumers to identify the product’s source, as against generic terms that merely describe the product being sold. For instance, there are certain brand words that were not initially generic but lost their trademark when the general public began to use the trademarked words to describe the product or service, in general. Common examples include Band-Aid, Aspirin and Yo-Yo, which at some point all became synonymous with the product at large rather than the brand itself.
  • Infringement by another person or company – Trademark infringement is the reproduction or unauthorised use of a trademark. For instance, some clothing manufacturers attach brand labels to generic products and attempt to pass them off as authentic.

If someone else uses your trademark without your permission and you do not try to stop them, the courts may infer that you do not own the rights to the trademark. You lose the right to sue for that specific instance of trademark infringement.

What can I do to prevent the loss of my trademark rights?

The most effective way to prevent your trademark from becoming generic is to prevent any misuse of the trademark by competitors and to stay informed of the use of your trademark by others. The same goes for trademark infringement. This may include suing competitors who use your trademark to describe their products.   The onus is on the trademark owner to monitor its brand to enable you to take action where required.

If your trademark registration is about to expire, it’s important to renew that registration in a timely way. As previously mentioned in our article about trademark renewal, registered trademarks are only valid for 10 years in Australia. Renewing your trademark will keep your business protected under the law and prevent competitors from profiting off your hard work.

Protect Your Business with Pinnacle TMS

Businesses with registered trademarks need to protect their intellectual property from opportunists. Find out how Pinnacle TMS can help you with your trademark application, renewal and other trademark requirements by calling us on +61 2 9520 4366. You can also send an email to info@pinnacletms.com.au.

As one of the leading trademark specialists in Australia, we take the headache out of protecting your trademarks and help you avoid brand name identity theft.