Imagine: You have just finalised a fantastic name or logo for your new business or product. It’s catchy, stylish and most of all, you can hardly contain the excitement to start sharing it with the world and rolling it out on all your signs, brochures, websites and business cards.
There is just one problem: You have not conducted any searches of similar brands, business names or logos, and you are oblivious as to whether someone else is already using it.
Unfortunately, this scenario is not fictional for many small business owners who may not be unaware that they are infringing another person’s intellectual property rights. Just ask the ‘Queen of Tarts’.
In a recent Canadian dispute, Ms Kearney, operated a bakery and café for sweet treats and cakes under the name, the ‘Queen of Tarts’. The name was the bakery’s identity and ‘Queen of Tarts’ became her persona. What she didn’t know was that the name ‘The Queen of Tarts’ had been successfully trade marked by another pastry chef, Ms Pick. As the registered trade mark owner, Ms Pick owns the right to use the brand ‘The Queen of Tarts’ in connection with pastries and other baked goods, to the exclusion of all others, including Ms Kearney. Consequently, Ms Pick successfully sued for trade mark infringement. The Canadian Federal Court ordered Ms Kearney to pay Ms Pick $10,000 in damages, plus courts costs. Further, she would have to spend thousands more to re-brand her business. The consequences for Ms Kearney and her business as the ‘Queen of Tarts’ were irreparable.
Like many small business owners, Ms Kearney believed that registration or incorporation of her business name would be sufficient to protect her legal interests in using the brand ‘Queen of Tarts’ for her pastries. She received uninformed advice from fellow small business owners and was not aware of the significance of her actions. She did not seek professional legal advice and consequently, was not equipped to navigate the legal system on her own. Ms Kearney has now learned her lesson and advises business owners to protect their businesses by registering their business names and logos as trade marks. After all, your business’s identity in the market place is the most valuable asset of any business.
Lesson for new business owners
Before you pour your savings into your new business venture, do your homework.
Order a trade mark search for your new brand before you sign off on the advertising, shop fitting, posters and packaging. The purpose of a trade mark search is to identify any potential risks and liabilities arising from identical or similar brands that are already being used by others. A trade mark search will also help show you how strong or weak your brand is, compared with others, and whether it is distinctive enough to be easily distinguished from other competing traders in the market place. In other words, it will show you how likely it would be for you to be granted exclusive rights to use your brand in connection with your products or services.
Therefore, a comprehensive and thorough trade mark search is the first step to protecting your business interests. Without one, you run the risk of infringing upon another person’s intellectual property rights, and paying thousands in damages as a result.
Can you afford to take this risk?