What Are The Legal Consequences Of Not Filing A Trademark Registration?

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Trademark registration is an important step in protecting your business. Trademarks can provide the key to identifying your business as the source from which they sell their products and services. A trademark is also a form of intellectual property comprised of an identifiable symbol, design, or brand that identifies particular products or services from those of other parties, while trademarks used for other purposes are often known as generic trademarks. There are many different types of trademarks, including CPTMA names, symbols, titles, slogans, sounds, images, or colours. The most famous trademark in the world is probably the “trademark”, which is used by the likes of Nike, Adidas, and McDonald’s, on their respective products and services. However, registering your own trademark is not as simple or as straightforward as you may first assume.
There are many different types of trademark registration, including: first-colour trademark registration, excusable nonuse registration, country of originality, and the country of use. First-colour trademark registration is when the trademark owner files their mark with the Patent and Trademark Office in the country where they live. This method of registration ensures that the trademark is effective as far out as the international community is concerned. Once filed, it remains effective throughout the life of the trademark registration. In Australia, first-colour trademark registration is not recognised by the Trademark Office unless the registration includes a statement or name that specifically says that the mark is being registered in Australia and that the mark has been approved by the Australian Government.
Secondly, trademark registration can be achieved through federal registration. Federal registration is achieved by filing an application with the Attorney-General’s Department, which then makes the trademark available for use by anyone who wants to register their mark. This is different to the common law trademark registration, which is achieved by application to a federal court. Although there is a similarity between the two processes, federal registration gives more protection to the trademark owner.
On or in connection with the goods or services listed in the trademark registration, third parties may challenge the trademark registration. A trademark challenge prevents the trademark registration from going into effect. If the trademark registration goes into effect, the trademark owner is given a statutory period called the Statute of Limitations. During this time, they must apply to the courts within a certain limit to re-register their trademark if they want to renew the trademark. If the trademark registration is cancelled, this limit does not apply.
There is another legal presumption on or in connection with the goods or services listed in the trademark. This presumption is known as the good faith principle, which states that if a trademark owner honestly believes that their mark is worthy of trademark registration, they should not be prevented from having it registered. The good faith principle can prevent the registration of a trademark from being canceled because the trademark registration was found to be fraudulent. If there is any confusion as to whether the trademark would be approved, the trademark should be withdrawn instead of resubmitted.
This legal presumption on or in connection with the goods or services listed in the trademark also extends to any assignation or transfer of the mark. If there is an assignment, the assignee is required to promptly remove the trademark from any documents that would make it impossible for the original assignee to obtain legal protection. Any failure to comply with this requirement can result in heavy penalties. This legal presumption on or in connection with the goods or services listed in the trademark also applies to any use of the mark by the assignee that is not specifically prohibited under the law. This legal presumption on or in connection with the goods or services listed in the trademark can extend to any use by anyone who benefits from the use of the mark including, but not limited to, retailers, manufacturers, brokers and sales persons.
One of the problems faced by many businesses is that of protecting their brand name. When a trademark is registered, the trademark owner has a legal duty to prevent others from using a mark that might confuse or even repel customers from purchasing the goods or services offered by the business. This means that if you have registered your trademark, you are actually lending protection to your brand. Even if the registration is not in force, if you fail to exercise your rights under the trademark registration laws, the right to protect your brand is lost.
The legal consequences can result in severe fines and the loss or termination of the trademark registration process. If the trademark registration process is not completed satisfactorily, there will be a dispute about the validity of the trademark which can lead to expensive litigation and may even result in the cancellation of the trademark registration. This process is time consuming and therefore many small businesses do not bother filing for a trademark registration. This is dangerous, as if the trademark registration is found to be counterfeit, you can face serious legal actions and your business could be irreparably damaged.