To many small business owners, trademarks are mostly a foreign language availed by big businesses. In Episode 67 of the Business & Life Conversations Podcast, Lisa Win, a trademark lawyer, explains why trademarks are so important and walks us through the ins and outs of trademarking for your business. Trademarks have been so important to my business and I want to share this wealth of knowledge with you, whether you need it now or maybe in the future, to protect your business and take away the fear of the unknown in the world of trademarking. This is an episode that you truly don’t want to miss because it might just save your business in the long run.
Important Links Mentioned in the Show:
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Australian Business Collaborative Facebook Group
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Prefer to read Types of Trade Marks and Why They Are Important to Your Business? Here’s the transcript:
ANGELA:
You’re listening to the Business and Life Conversations Podcast with Angela Henderson, Episode 67.
Hey there, you’re listening to the Business and Life Conversations Podcast. My name is Angela Henderson and on this show, we talk about improving your business, life or both. By having amazing and rich conversations with brilliant guests who will inspire you and who will give you tips and tricks to help you grow both in life and in business.
Well hey there, amazing humans. I hope you’re having a brilliant day no matter where you are in the world and welcome back to another episode of the Business and Life Conversations Podcast. I’m your host, Angela, from Angela Henderson Consulting where I am a Business Consultant helping women in business to develop the foundational framework and strategy they need to grow sustainable and profitable businesses.
Now, if you’re like me, trademarks are mostly a foreign language. I slowed that down; a foreign language because that’s how I feel about trademarks. You know it exists, you may even know it’s important but you’re not quite sure how the heck they work and why trademarks can be super important for your business. That’s why on today’s show, I’ll be bringing on my own trademark lawyer, Lisa Win, to talk about all types of trademarks, the benefits of getting a trademark, the process for getting a trademark, the costs when you don’t do trademarking, the costs for how to set up a trademark and so much more. Trademarks have become super, super important to my business and I want to make sure that you too are educated about trademarks and how they apply to your business and what you need to do in order to protect your business for now and for the future. This is an episode that you truly don’t want to miss because it might just save your business in the long run.
But before we jump into this episode, I just want to let you know that this episode is sponsored by my new on-demand Business Masterclass, The Ultimate 4-Step Framework for Creating a Sustainable and Profitable Business. In my 60-minute jam-packed Masterclass, you are going to learn my signature four-step framework for creating a sustainable and profitable business without sacrificing time with your kids, without the overwhelm or without wasting time on any more money; the four big mistakes that everyone in business makes and why they’re keeping you from growing a sustainable and profitable business; what is working for your business now and why most of what you’re being taught about growing your business is outdated and wrong.
To sign up for my on-demand Business Masterclass, The Ultimate 4-Step Framework, you can simply head to bit.ly/masterclasswithangelahenderson and we’ll also have the link in the show notes. Now, buckle in and get ready for this amazing episode about trademarks with Lisa Win.
ANGELA:
Welcome to the show, Lisa.
LISA:
Hi, Angela. Thank you so much for having me.
ANGELA:
Thank you for being here. It’s always wonderful to have a guest on that is super knowledgeable. And I know, I mean, all my guests are super knowledgeable but what I mean by that is I think there’s an element of trademarks that people start to lose their shit over. Like, they don’t really know or they start to assume things. And I want to kind of debunk a few miss, I guess you could say, about trademarks, today. And I want the audience to start to get comfortable with it. So I guess that’s why I know you’re super knowledgeable on this and I’m really thankful to have you onboard today for this.
LISA:
Excellent. Thank you.
ANGELA:
Now, we first met, probably; I was trying to think about it. It was probably about 12 months I think; maybe a little over 12 months. And I was very fortunate to be introduced to you when I was creating my own signature program, Profit Pillars with Angela Henderson, and you assisted me with my own trademarking. And to be honest, when my copywriter at the time said to me like, “Anj, you’re going to need to get this trademarked. You’re going to need to have a separate logo for your program.” And I was like, “What are you talking about?” Like, I was like, “It’s Angela Henderson Consulting.” They’re like, “No, no, no, no. That’s your business but you need a logo that accompanies the program and then you probably need to get that trademarked.” But I was like, “Why would I get that trademarked? No one is going to copy me.” They’re like, “That’s what you think.”
And so then, like I said, I was really open; my eyes were open, I guess you could say, to the world of trademarks because I never in a million years would have assumed that my coaching program would need to be trademarked and that’s where you came in. And you kind of flipped me on my head a little bit, going, “Actually Anj, this is what we can do and this is what we can’t do.” So, as I said, I’m excited to have you here today.
But one of the things we do, Lis, before we jump into the nitty-gritty of trademarks is I like to ask each one of my guests a little question so that people can start to get to know you and I know you were just doing some family holiday time with your family during the school holidays.
LISA:
Yes.
ANGELA:
So my question to you, are you a beach person or a pool person?
LISA:
Oh, definitely a pool person; without dash.
ANGELA:
Definitely the pool?
LISA:
Yes.
ANGELA:
Yes.
LISA:
Yes. Who needs the sand?
ANGELA:
Seriously. And I always feel bad because; like, we were just like in Vietnam and there’s like these infinity pools that overlooked the beach. And I’m like, “Well, I’m kind of getting both,” but the nicest of these drinks are getting delivered, right? And I don’t; like you said, the sand; who the hell needs the sand, Lis?
LISA:
Absolutely. Plus, I’m a country girl, so I don’t live near the beach, which means when I go to the beach I get dumped by the waves. I don’t know how to swim in the ocean properly without causing an injury. So yes, pool is always…
ANGELA:
Or like needing to be rescued; any one of those things.
LISA:
Exactly.
ANGELA:
But I’m like the same, I’m like if a rip would have taken me, I would just float because I wouldn’t know what I’m doing, I don’t know what I’m looking for. And I do have a little bit of paranoia, like when I’m with the kids at the beach; like you can get me in a pool and I’m a definitely strong swimmer. But I definitely know my weaknesses; get me in that ocean and I start to kind of freak a little bit. And like you said, I’m very like, “Oh, Chloe, Finlee, you’re too far away.” They’re like, “Mom, we’re knee-deep.” I’m like, “You can still get torn away.” So I’m a little bit of the crazy mom also, which isn’t helpful when I’m in the water with the kids. So pool, so that’s good. So you and I are pool people. I don’t mind drinks getting delivered either. So yes, I’m all about the pool, too, also.
So now, can you tell the listeners out there, because like I said, the majority of people that are listening don’t know all of my guests. And so, this is why I kind of do this every time, every episode because I think it’s important that people get to know you; that clearly you like pools but also you’re a lawyer. So tell us a little bit about your current business journey and what that looks like.
LISA:
So, I’m a trademark attorney; so that means that I specialize in trademark law and that’s all I do. And it took me a while to get to this stage in my business journey, really. I was a lawyer for the government for a long, long time doing a different area of what I was doing; criminal law. And when I had my third boy; I’ve got three boys; when I had my third one, I started an online toy store when I had him. And basically, that was really just because I dreamed of being in business my whole life and I had no idea what to do. So I had three little kids at the time, so I just started a toy store and that was like a massive, massive learning experience for me and I did that for a few years and did it while I was still working as a lawyer and ended up selling that business. But that really opened the doors for me into this whole world of business and business people and I just loved all of that. And so, I got to a point and I’ve tried to work out, “Well, how can I combine law with working with business people?”
And this is really where I ended up. I went and did some further studies so I could specialize in trademarks and so I ended up here. And when you mix with a lot of business people, there are all these questions all the time about trademarks and, “Do I need one? And when do I need one? And how do I do it?” And all that kind of stuff. And so, I knew that there was a need for this kind of service and I really wanted to be able to deliver it in a different way than your average; your big law firms that are scary and intimidating and people don’t want to make that call to them because they are so scared of how much it’s going to cost them just to get on the phone to them. So yes, I wanted to be able to work with small businesses and deliver that service and give them that peace of mind.
ANGELA:
And that you do, you do it very, very well. But like you said, that scary part, right? Like, I know like, when I was calling you, I was like, “Oh, I need a budget for like five grand for a trademark,” and I was like, “Oh, how do I? Do I stop the launch because I don’t have this trademarked? And what happen if people do copy it and what am I going to do?” And there was a bit of fear going, like, “I know I got to do that but what is she going to say?” And then you got on the phone, I was like, “Okay.” For my instance, it wasn’t $5,000. So I don’t want you to stop listening now, going, “All trademarks are $5,000,” because that’s not true, alright?
But it was; it’s kind of like that fear of the unknown. What does this mean for me? What does it mean for the business? What does it mean for my family? What does it mean for my finances? Like, what does it even mean? So I guess, let’s really start off with kind of laying the foundation for this particular episode and what is about trademarks is what is a trademark? Let’s just start at the very most simplest form.
LISA:
Cool. So before we jump into that, I might just mention that I’m in Australia and an Australian trademark attorney. So, like we’re going to talk really high-level today, so most of what I’ll say is still going to be relevant to your overseas listeners because there’s a lot of similarities in most, overseas. But sometimes, I’ll probably deep into some Aussie stuff when we get into the details. So I just wanted to…
ANGELA:
You know, 100%. Absolutely. The majority of our listeners are Aussie but I’d say; again, I have to go look at the stats, something again, I don’t really look at a lot. I just know there’s listeners. But majority, I definitely know, the majority are Aussies. Like I said, at least 60% are Aussie but still, 40%, I’d say, if I had to take a guess are international.
LISA:
Yes. So I think they’ll still get some value out of these because it’ll all be sort of overarching ideas and it might give them a place to start when they go in looking into trademarks in their own country.
ANGELA:
Absolutely. And this is really about educating, right? It’s like, you might not need a trademark right now, but I want to plant the seed that there may come a day when you do need it and that we’ve let you know that like what are the benefits of a trademark what we’re going to talk about, what are some of the potential costs, how would you apply, and all that. So all of this information, though, like Lisa’s saying is going to be predominantly though; because she’s an Australian attorney, but at the end of the day, this wouldn’t be hard for you to take what we’re telling you and apply it to your own country or find someone in your own country.
LISA:
So, traditionally, trademarking was something that only big businesses would think about and you would go off to your big law firm with your big business and pay a lot of money to get your trademark. And I think there’s a lot of people who still think that that’s the case and that if they’re a small business, they don’t have to worry about it. But these days, things have changed because we’re all online and we all have our social media presence and websites and all of that kind of stuff. It’s becoming more of a relevant thing for smaller businesses as well. So, exactly it wouldn’t matter if you had a business in Brisbane and then another business with the same name in Sydney and another one with the same name in Melbourne and it really wouldn’t have mattered because no one’s going to get them confused. But now, people really can get them confused because they’ll end up on the wrong website or on the wrong Facebook page. So it is something that’s more relevant to most business owners these days.
So when we look at what is a trademark, trademarks are really about protecting your brand. So the legal, I guess, definition is that a trademark is a sign that’s used to distinguish your goods and services from the goods and services that are provided by another person. So it’s something that identifies your goods and services as being yours and it’s something that your customers can use to distinguish you from your competitors. So, in layman terms, it’s your brand, basically. It’s the things that you do to your business to help you stand out from your competitors and they make you different from your competitors. So it can be things like your business name, your logo, your tagline, service names, product names, packaging; anything that serves branding purpose in your business is something that can potentially be trademarked.
So what’s not is you don’t trademark a product and I do have a lot of people come to me saying that they want to trademark their product. You can’t trademark a product or a process or an e-course or anything like that; it really, you really have to come back to that brand. That’s really what trademarks are all about.
ANGELA:
And with, I guess, one good question because we are just; we just differentiated again that there are some different rules here in Australia than internationally; with trademarks, too, do you need to have a different, a trademark; do you need to apply for a trademark in each country or is the trademark universal?
LISA:
It is a country by country thing. So because countries have their own laws on these things, but that’s how; the laws can be slightly different from country to country and it’s pretty much impossible for there to be like any kind of international law that’s just going to apply everywhere. So yes, it does; it complicate things a bit and when it comes to businesses working out where they need to get their trademark, then I usually suggest to looking at where most of their income is coming from. If most of their customers are from the U.S., then that’s where you want to be protected because if worst-case scenario happens and you can’t use your brand in the U.S. anymore, then that’s going to have a massive effect on your business because that’s where most of your customers are coming from.
ANGELA:
Totally.
LISA:
Yes.
ANGELA:
And what do you think are the key benefits of a business having a trademark?
LISA:
Well, it really is about giving legal protection to your brand. So in Australia, we have the Business Name Register where we all have to go and register our business name and other countries might have something similar to that or even state registers for that sort of thing. A lot of people think that that gives them some legal rights to the name and it actually doesn’t. So registering your business name doesn’t mean that you own the name, it doesn’t mean that you can stop someone else from using the name. It doesn’t even mean that you’re allowed to use the name yourself. You could register a business name and still find yourself being sued for infringing somebody’s trademark. So the trademark; the benefits over are to give you that legal protection and basically, what it gives you is the exclusive rights to use your trademark, say it’s your business name, as a brand, for the goods and services that are specified on your registration.
So that means that the same thing can be trademarked more than once if the trademark relates to different kinds of products and services. So other advantages of doing a trademark is that it means that you can authorize other people to use your trademark. So you might license out the name of your, say you’ve got an e-course or something, you might license that out and let other people deliver it under your brand. A trademark is personal property; it’s an actual asset that can be bought or sold. So when you’re looking at the assets that your business owns, then a registered trademark will be listed as an asset and will have a value and it’s something that’s quite important if you’re ever selling your business.
It really puts you in a stronger position if you do you need to stop somebody else from using the same name as you because the trademark register is public and everyone can see that something is registered as a trademark. That really just makes it clearer for you to say, “Look, I have the trademark. Therefore, these are my rights.” Having that clarity around it is much easier than you having to argue that it’s your name and that you have any rights to it altogether, so it makes things much easier. And it can also prevent a lot of issues from coming up as well because if a business, particularly big businesses; if they’re going to choose a new name or a new brand, they will check the trademark register before they settle on the name and make sure it’s not registered. If it is, then they’ll go off and choose something else. If it’s not on there, they’ll go, “Okay. Well, we’re good to go.”
ANGELA:
Which is interesting, though, because I think this is super important for small businesses, too, right? And that big businesses may have the teams and support around them to know, or legal teams even, that this is what you need to do, right? Or we’re going to be having another branch. But I was just working with one of my coaching clients last night and she wants to have like; I won’t disclose what, but she wants to have like this umbrella onto her current business and she wants; there’s a name. And I was like, “You need to check that out.” And she said, “Why do I need to check? It’s just, I’m just adding it under here.” I’m like, “No, you don’t understand. You need to double-check that what word and terms you’re about to start utilizing aren’t trademark.”
And we can kind of giggle, you and I, because you and I had an encounter, well, not you; I had an encounter this week to which I then called you and I freaking state of panicked on Monday because this is a prime example of this happening is that I won’t disclose the man because he’s a beautiful man. I give this man an enormous amount of credit, alright? But I was running a Facebook ad for a particular lead magnet and on my ad, it had two words side by side. Now, these two words to me are just universal words, a set of words that are used regularly that I see in different countries all the time. But because I, again, was naive, didn’t even think these set of words would be trademarked, I got a video message the other day on my Facebook page, which again was really lovely that this gentleman did that. Like again, I cannot praise him enough for the way he handled the situation. “Anj, hey, this is such and such. And by the way, I’ve got a screenshot of your current Facebook ad that you’re running and by the way you’re infringing on my two words.” Right? Again, I didn’t know. Like, again, it was a harmless problem but what I will be saying is, and that’s why again, it’s so important. I mean, you’re already booked to come on anyway. But it’s really important this episode for me because it’s not just about protecting your property and the assets that you currently have but anything that you might want to start doing and then you potentially; you could get taken down, right?
So, in this instance, my mind was kind of slapped on the hand really, from the point of view like, “Now, I’m going to be really mindful. This is the lesson I’ve learned from that.” But luckily, I hadn’t started a whole new business based on those two words because I would have been completely shut down. And that’s what I was saying to my client last night when we’re talking about this new idea is before you do anything else, go to the register, like where you can check everything out and just double check that this isn’t. And then, I talked to her about the importance of trademark and all these and again, whether or not what she does with that information is up to her. But I believe that now that I have all that information, it’s my responsibility as a coach to educate her and then she can choose what she does with that information. So this is a prime example of you do have to look for these things regardless if you’re a big business and a small business.
LISA:
Absolutely. And most issues that come up isn’t accidental. They’re not; people are really worried about people copying them. And yes, that does happen. But most issues that come up are just much more innocent kind of situations where it’s like, “Oh, oopsie. I didn’t check that or I didn’t realize.” So, you need to check, just in case. And for my clients, while they get all these legal rights from getting a trademark, most of them really decide to go through the process because they just want to have the confidence that they’re actually allowed to use the name or whatever it is. They’re going to be safe if they use it, they’re not going to get in trouble from anybody else and they’ve got that peace of mind then that they won’t be forced to change their name if an issue arises.
So they’re not sort of going, “Oh, I want to do this because I want all these legal rights.” They’re mostly saying, “I just want to enjoy for that peace of mind to know that I’ve got the name. It’s mine. I’m allowed to use it and I can go forward and invest money in packaging and branding and all these kind of stuff knowing that that money is not going to be wasted because I’ve got the trademark locked in.”
ANGELA:
And I guess when we talked about that, you would have seen in the years and I guess we just; we’re briefly talking about it, but I can only assume that there’s an enormous amount of costs that businesses can incur if they don’t have a trademark.
LISA:
Yes. So the cost that come up are really; what’s going to happen if the worst-case scenario happens, which if you hang around on Facebook at all, you will see people with their; freaking out about, “Oh, I was on the receiving end of a cease and desist letter and now I have to change all my branding,” and all that kind of stuff; so the worst-case scenarios do happen. And so, if that happens, I guess, there’s two main things that can happen is that you’re going to have to change your name or your logo or that you feel like you’re in the right and you now need to defend yourself and take action so that you don’t have to change everything.
So if you choose to change everything, then that could mean a new name, a new branding, a new website and domain and socials, and new packaging, signage; all sorts of stuff. So depending on your business, the cost of having to make that change; so for you, this week, the cost of having to make that change is probably not too bad.
ANGELA:
It will be more a time thing, and again like I said, I take full responsibility; there’s no blame here. The full responsibility is on me, but now I’ll be going back to the design team to change the words, right?
LISA:
So it’s quite annoying.
ANGELA:
It’s more of like an inconvenience, but I guess if it was my trademark that people were infringing on, like, I totally understand where this guy is coming from. Like, he’s just protecting his assets. So this guy is in the full; he’s done exactly everything right and like I said, I’m super; I’ve got all the gratitude for the fact that again, the way he handled it; like a beautiful man. But again, it could have been very different, right?
LISA:
Yes. And I’ve had a client who’s been on the receiving end of cease and desist letter from a big company and she was a product business. So she had a whole heap of products in their packaging and was given 14 days to stop using the name. And for her, that means having all these stock that she can’t sell. So, of course, there’s all the other stuff of having to take her website down, to take her YouTube channel down; all that kind of stuff is devastating and she needs to start again, basically. But all these stock as well, like it’s such a waste.
ANGELA:
And that’s where I guess if we look at the time, the effort, the emotional energy, that I just think it should be one of those things that you almost add at the beginning of your checklist when you’re starting a business, right? Like, you’re already going to pay for a logo, you’re already going to pay for a website, you’re already going to do all those things. I just don’t see, I mean, I’m not sure; there are cases that you were talking about. But to me, it’s just such an important part and again, it’s one of those things that I didn’t know what I didn’t know. But that you can be damn sure that any coaching client that I’m working with from now on, it’s a part of our ongoing conversation, right? It has been for a while now.
So what are the legal requirements, for those people out there that are going, “Oh, you’re bringing up some really great points here, Lisa. There’s probably a few things that I need to go look into.” What are those legal requirements look like for getting a trademark?
LISA:
So one of the misconceptions with trademark is that people think that it’s just an administrative process; you just log in and fill in the details. And really, that’s because on the IP Australian system at least, it’s super easy to log in and fill in the details and bang, five minutes later, you’ve lodged your trademark application. So a lot of people don’t realize that there’s a lot more that happens after you lodge your application. That’s not it once it’s lodged. And about 30% of all applications in Australia don’t go through; so that’s a big chunk. And then more of that, the higher percentage that run into issues and some people will be able to overcome their issues and get them through and then what’s left is 30% that still don’t go through at all.
And so, that’s because their applications are not meeting those legal requirements for being registered. So there’s a few ones; one that comes up a lot is that the trademark must be capable of distinguishing your products and services from others; from your competitors. So this one means that you can’t trademark those generic, common phrases that describe what it is that you’re selling.
So, really obvious one is you wouldn’t be able to trademark Sydney plumber because all the other plumbers in Sydney need to be able to say that they’re Sydney plumber and it just wouldn’t be fair for one person to have the exclusive rights to that phrase. And then, that’s a really obvious one but there’s these massive grey area of whether something is too generic or not or is it too descriptive or not. So that one can be one that can really catch people out; they lodge their application and find out months later that it’s not capable of distinguishing the test. So they kind of fall down at that point.
The other one that comes up quite a lot is that your trademark can’t be either substantially identical or deceptively similar to another mark that’s already on the trademark register. So that means you need to do a search before you lodge your trademark application and see what is already on there. And a lot of people get caught up here because they just search for the exact thing that they’re wanting to trademark. And if it comes up that there’s no results, they’ll go, “Well, I’m good to go.”
ANGELA:
“Well, okay.” Yes.
LISA:
But because you need to look anything that might be substantially identical or deceptively similar; it’s a bigger operation to do the search. And you’ll search for different spellings and part words and all sorts of things. Just make sure that there’s nothing on there that’s going to pop up and cause you an issue during your application process.
ANGELA:
And also like, I mean, those are a lot of like what you’re talking about the legal requirements. But I even know like; like you said, it’s quite easy. You go online, you click a few buttons, wham-bam, and you’re done but there’s like actually some more complexities. Like, when you were sitting with me on our call, I think maybe it was a questionnaire; it was one of the two or could have been a combination where you’re like all the different categories that you could also have. And I think like, there I was like, “Okay. This is a shit storm, Lisa. Just tell me what I need to do.” Right? Like, if I would have had to try and figured that out myself, it would have been a sure error, like I would have potentially even had too many included things I wouldn’t. Like, that was why I was so glad that I had you because I was like, you knew the ins and outs of each category, how that applied to my business, what I needed to do. So again, you can easily screw your application up with like just those categories I was so confused about.
LISA:
Yes. So at the end of the day, your trademark is giving you the legal rights to use the name in relation to whatever products and services are listed on your trademark. So that means that that list of your trademark or your products and services, that list really defines the legal; the scope of your protection. So it is like super, super important. Where it gets confusing for people is that all the different products and services in the world have been categorized down into 45 different categories called classes. And so, when you’re choosing your products and services, it’ll ask you what classes they’re in and the cost of your trademark will be linked to how many classes you’ve got in there. So that is a bit of a process to work all that stuff out but it also confuses people, too, because they then think that these classes is actually important to their legal protection.
ANGELA:
Yes.
LISA:
So I have seen a lot of people say that, “Oh, I’ve got a trademark in class 30.” And so, they think that they’re covered for all of class 30 and that’s not how it works. It really does come down to the specific descriptions of your products and services and getting that right. And that’s where people do fall down when they spend five minutes doing their trademark application because they just log in and go bang, bang, bang, and they think that’s all. They don’t realize how important that step is. And that’s where someone like me puts a whole lot of thought into that because you got your trademark; they’d last for ten years. So you don’t want to be coming back in another year to kind of fill in the gaps of things that you missed. You want to try and make sure that it’s drafted nice and widely so it’s actually going to protect you.
ANGELA:
As you grow.
LISA:
For as long as possible. That’s right. Yes.
ANGELA:
And so, with those things and the legal requirements and some of those like specific categories, how do businesses, if they wanted to apply for a trademark? Like, what does that look like? How do they do that?
LISA:
So the first thing you need to do is decide what you’re actually going to apply for. So most businesses have more than one trademark because it’s about your brand. You’ve got different aspects to your brand; you’ve got your name, and your logo and product names. The first decision is like; well, what is the most important thing that we need to actually protect? Or have a strategy; if you’ve got multiple things, then work out what’s the most important one that we’ll do first, and then, what will we do next. And again, people think that if they lodge a trademark application for their logo, then that means that they’ve protected their name. I guess, there’s a bit of a lack of understanding about how the different kinds of trademarks protect you differently. So making that decision of what needs to be protected is the first step.
Then you need to do that search and make sure that there’s nothing on the register that’s going to stop your application from going through. And you have to think about whether any of those legal test; and there are others that I didn’t mention that aren’t, they don’t come up very often; but you need to have a bit of think about those and see whether your application is actually going to satisfy those tests because there’s no point lodging it if it’s got no chance of going through.
ANGELA:
Yes.
LISA:
You need to work out who the owner of the trademark will be and this is something that people usually give zero thought to. But it can be the death of your trademark. When you go to enforce your trademark five years down the road, if you haven’t got who the owner of the trademark is right at the start, then you might be able to enforce your trademark down the road. So you want to get that right.
And then, determine those products and services that you want to be covered for, working at the classes and all that kind of stuff. And then you can work out the costs and make a decision then about how much you want to get protected. For most of my clients, it is going to be a financial decision as well, making sure that we get as much have been covered as we can but it’s also within their budget.
ANGELA:
Yes. And what would you say for those people out there, because a lot of my listeners will be very budget-conscious as I was when I started to do this. What’s like the minimum type of cost for a trademark versus like, what’s a ballpark? And again, how long does a piece of string, really is a question more like it. But I think mine was under $2,000 with you.
LISA:
Yes.
ANGELA:
So they all range, but to me, like; and I know $2,000 may sound like a lot to people, but to have that like so I can lay my head on my pillow at night. And the other thing because the way that trademark works, it goes through stages, correct? Like, you’ve got to apply for it? If you want to talk to them what the stages of a trademark look like.
LISA:
Yes. So you lodge your application and pay your fees at the start and then your application gets examined. And this is where it’s different to a lot of other administrative type things, like you apply for your business name and it’s just all done by the computer. Trademark is different. You have an actual person; a trademark examiner will sit down and look at your application and work out whether it meets all the requirements for registration. If they accept your application, that means, they say, “Yes,” it’s ticked all the boxes and then it gets published in the trademark journal. If they say, “No, there’s issues,” then they’ll send a letter and set out what those issues are, and then you have an opportunity to work out a way around those issues. So this part of the process can take anywhere between one month and six months for that bit to happen.
Once your trademark is published, then there’s a two month period where other businesses can come and oppose your application. And that doesn’t happen very often but it kind of happen if there’s already somebody out there using the name and they’ve been using it for a while but they don’t have a trademark, then they might come in at that point and oppose your trademark application. And then, assuming everything goes through fine there and nobody opposes it, then you get to registration and your registration is backdated to the date that your application was first lodge and you’ve got that registration for ten years but you can renew it every ten years, forever, if you like.
ANGELA:
Yes. Like, I know when we were doing it I just remember that there was like; was it three-payments that I made you? Like you had a payment plan, right?
LISA:
Yes. So that’s just my way of doing it. And so, with the fees; there’s the government fees and we have to pay those fees right at the start. And then, there’s the professional fees if you use someone like me. So the government fees are on a per-class basis. So they start at $250 or you could pay $330 depending on what kind of application you lodge; so that’s per class. To do one through me, it starts at around $1,000 mark for one class, that includes all the government fees and then can really go up for as much as you want. But yes, I’ve got a payment plan, which allows my clients to spread out my fees, part of it.
ANGELA:
Totally. But that, to me, that was super helpful in my position, right? Like, I’m paying for copywriters and sales pages and logos and graphics and I was like, “Oh my gosh. I know I need to do this but it’s another fee.” Right? And so when I came to you, I wasn’t; I was actually expecting to have to pay that upfront. So I was like, “Okay, you’ll find the money.” Right? Like, I guess I always come from the space of I will find the money if it’s genuinely what’s going to help my business short and long-term, right? I’ll figure it out.
But then you came and you were like, “Yes, no worries. We can do this. And by the way I have a payment plan.” I was like, “Oh my gosh. This is ingenious.” Like a lawyer’s got a freaking payment plan. And I guess, that’s what I liked about you is that your willingness to really work with smaller businesses, right? Because the bigger law firm will just be like, “Johnny, Susie, Angela, you’re going to need to get this paid up, right? So, just as a side note, I do say that again, if you are sitting on the fence about getting a trademark and you don’t know what to not do, just know that again, someone like Lisa is trying to help you do this the right way, the correct way while at the same time, helping with cash flow, which you don’t see very often.
Now, I guess this goes into my kind of my one of my last questions for you is why should businesses pay for a lawyer to do the paperwork the first time around. I mean, I’ll speak to it in a minute, but I’d love to hear what your thoughts are.
LISA:
Well, I think this is a great question because when you do hang around in Facebook groups and things like that, you’ll see a lot of people popping in there saying, “Super easy; just do it yourself.” So a lot of business people will hear that from other business owners that it’s super easy and you don’t need to have a professional to help you through it. But I think there’s two things to really consider: there’s the application process, and then, there’s the process of ensuring that your trademark is actually going to provide you with the best legal protection that you can have.
So the application process, it is super simple. Like, it really, people do it in five minutes logging in and lodging their application and off they go. And if by chance, their application meets all the legal requirements; because most of them don’t know what they are when they lodge it, it’s just pure chance; their application goes through, then they will tell the world that it was super easy to get their trademark. What they don’t realize is that a lot of these people have trademarks that are terrible; that actually…
ANGELA:
That would actually not cover them, probably.
LISA:
Exactly.
ANGELA:
When the ship went down.
LISA:
All the time, I see that; all the time. So when you work with somebody like me, we’re thinking beyond just the application process. We’re thinking about your business over the long term and how we’re going to protect that. It’s more than just, “Is this application going to go through or not?” Is it actually going to protect you at the end of that day?” Anyway, if not, what are the limitations to it and making sure that our clients understand what they are protected for, what they’re not protected for and it’s a bit more of a partnership. And you talk about strategy and making sure that if you’ve got a plan for, “We might do this one now and then we might do that one later,” it’s a different kind of relationship I suppose.
Whereas, if you just decide that you want to do it yourself and you ring up the trademark office in whatever country you’re in, you’re going to basically get some advice on the process; the application process. But they can advise you on how to make sure that your application is drafted correctly, they can advise you one. But with your trademark, they don’t really care whether your trademark protects you at the end of the day because their role is just for that application process; they don’t have any role after that.
ANGELA:
And also like, they can’t sit there, they’re not a business advisor either, like, they don’t have time to sit there and get into the nitty-gritty, “Oh, so you’re going to sell merchandise. Oh, you’re going to sell a course. Oh, you’re going to want to do both.” And so, again, I don’t know; and that’s why I guess, I’ll answer is why should businesses pay for a lawyer is if you’re going to pay for everything else, why the hell wouldn’t you pay for a lawyer is what my question is. And I guess, it’s also about not just what happens there, like, I was able to call you up on Monday, right? Like, I had a relationship with you and I was like, “Lisa, this beautiful man has called. He said I’m infringing on two words. I thought they were universal words.” And I said to you right off the bat, charge me for whatever it is but I just need some advice from you about what the hell is going on; like what do I do.
But because I knew that you were the trademark lawyer, I already had that relationship, you helped me in five minutes. I was like, “Yes. Too easy. I got my answer.” It’s done. Whereas, if you ever fall into that and you’re doing it on your own and shit goes down and you haven’t paid a lawyer, like if I wouldn’t have known you or say I called up a legal team, I could just be hit with the $1,000-$2,000 quick bill, right? Because there was no relationship there.
LISA:
That’s right. Or you would’ve posted it on Facebook groups and get 20 different answers to your question.
ANGELA:
None of them would have been correct unless they were a lawyer, right?
LISA:
Exactly.
ANGELA:
And so, I guess, all I’m saying is like just find the money, alright? And I know you’re probably, “Anj, that’s easy for you.” It hasn’t always been easy for me, alright? But I made collective choices and decisions looking at my business from a long-term strategy, not a survival mode strategy. So I just kind of go like if you’re willing to start a business, kind of like people that go travelling and don’t take out travel insurance. And I’m kind of like, “Okay. But you just dropped $10,000 on this, but you’re not going to like pay the extra $200 or $300 may be to ensure that your family can get medical?” Like, it doesn’t make sense to me. It really doesn’t. So again, I could go on about it and again, I’m not here praise; it’s not called the podcast praise, Lisa. But, all I’m saying is like really consider; or I know you offer like a quick chat to people who are considering this. Like, speak with Lisa, minimally, and then make a decision as to how you can afford it because it is super, super important for the overall sustainability and profitability, long-term of your business.
LISA:
And I think it’s just; don’t be scared to reach out to someone initially and get, just get some advice early on. Even if you know that you can’t afford to do it right now, when you speak to somebody and understand a bit more about it and how it applies to your business and what it’s likely to cost you, and then, you can actually make an informed decision about when the right time is for you and you can start planning for it; you start to put it in your budget. And I do speak to people and they say, “Oh, I can come back to you in July after I’ve done my tax.” But at least you know where you stand and you can plan for it then.
ANGELA:
Yes. 100%. So now, one final question that I’ve started to ask my guests to wrap it up, before we wrap up, I should say, is what do you know now that you wish you knew when you first started? In business, collectively.
LISA:
Oh my goodness. I wish I knew how important relationships are, really, with other business owners. I’m a bit of an introvert and I work at home and I work by myself and I really just thought that’s what business is all going to be that; I’ll just be doing my own thing. But now, I know that; that’s not what business is about at all. It really is all about relationships and it’s amazing how much other people can help you whether you work with them or whether you become friends with them in so many different ways. So that’s what I wish I knew right from the start is how important that is and I would have put in a lot more effort initially to build relationships rather than hide myself up in a little hole doing my own thing.
ANGELA:
You speak my language. I mean, I’m all about human to human marketing and that human connection and people freak out when I pick up the phone and call them or ask them to dinner. It’s almost like, “Oh my gosh. I’m actually going to get behind from the computer.” My accountant, Roger, who was on a couple of episodes before was like, “Anj, I haven’t met you yet, face to face.” So I’m like, “I know. I know.” But during the day, I said, “Let’s have dinner instead.” So I think it is, relationships, I genuinely believe are key to how fast your business will or will not grow. I think it’s super, super imperative.
Now, for those listeners, again, we’ve probably kind of mind blown a few people here, Lis; or just got the penny rolling or penny dropping, whatever you want to look at it. For those listeners wanting to know more about you or connect with you to explore getting their own business trademarked here in Australia, where can they find you?
LISA:
So my website is wintrademarks.com.au and I’m on Facebook at Win Trade Marks. I am hopeless at Instagram so I’m not even really on Instagram. It’s on my list of things to get onto at some point. And on my website, though, I do have a couple of things that might be useful to people. There is a checklist on there where you can; basically, it’s all the things you need to consider if you’re deciding you need to get a trademark or not and it’s more than just a cost. It’ll raise a few things to have a bit to think about. And also on my website, you can book that chat with me. So it’s just a free, short chat where we can just go over your business and have a little chat about what you’re thinking you might want to protect and I can give you some info about where you stand and you can go away with a bit more info and make some…
ANGELA:
I think it is all about educating yourself. It’s like the more and more like, “What does this mean? How does this apply? What do you know?” Totally agree. So if you are needing anything with trademarks, please make sure again, do your due diligence. And if you are in Australia, feel free to head to Lisa’s website. We will have all the links in the show notes, which I guess goes to my kind of closing thing.
My team and I will be putting together this entire podcast transcription for this episode at angelahenderson.com.au. And of course, I cover all sorts of related business and life topics inside my very active Facebook community; Lisa’s in there also; The Australian Business Collaborative. So head on over and join there. And for the rest of you, have an awesome day no matter where you are in the world and I look forward to you joining me next week for another amazing episode of the Business and Life Conversations Podcast.
Thank so much, Lisa, for your time today and educating all of the listeners. It’s been fabulous and I hope you have a good day, too, Lis.
LISA:
Thanks, Angela. It’s been great fun.
ANGELA:
No worries. Thank you.
Thanks for listening to the Business and Life Conversations Podcast with Angela Henderson, Types of Trade Marks. www.angelahenderson.com.au
