Trade Mark Tips

If you have successfully registered a Trade Mark, you need to maximise its benefits! Here are some of our tips to assist you with making the best out your registered Trade Mark.

Use your Trade Mark – Trade Mark registration can be subject to removal if you do not use the Trade Mark for a continuous period of 3 years.

Make others aware that the Trade Mark is registered – You can do this by using or displaying a ┬« symbol next to your Trade Mark.

Be aware of your Competitors – While you have a Trade Mark registration, your competitors may use marks similar to yours – it will be your responsibility to be aware of what your Competitors are up to.

Protect your Trade Mark – A registered Trade Mark is an exclusive right to use the Trade Mark in Australia for the goods and services the Trade Mark is registered in. If a Competitor infringes on your registered Trade Mark, you must be prepared to take action to protect those rights.

Renew your Trade Mark– Trade Mark registration lasts for 10 years and you must be aware of the renewal dates or risk your Trade Mark registration expiring!

Shareholders’ Agreements and Company Constitutions

We have previously written about Shareholder’s Agreementsand what they are. A Shareholder’s Agreement is certainly very important as it deals what each shareholder brings to the table, and more importantly, what happens when there is a disagreement or if a shareholder wants to exit the business. Not having a Shareholder’s Agreement will┬álikely make the exit process more difficult. However what a Shareholder’s Agreement cannot do is to determine how the company is run, who has the day to day responsibilities, who the directors are, and the conduct of board meetings. These are all matters dictated by the Company Constitution.

The Constitution has the effect of an agreement between the company, its members, its directors, and its secretary. A company adopts a Constitution on registration or after registration. If no particular Constitution has been adopted after registration, a default set of rules called the Replacable Rules. These rules are found in the Corporations Act and they deal with a number of topics including:

  • Company Officers and Employees
  • Meetings of Directors
  • Powers of Directors
  • Voting, Resolutions, and Quorums.
  • Meetings of Members
  • Transmissions of Shares on Death or Bankrupcy

A Company can replace some of the Replacable Rules with its own rules or adopt its own Constitution so long as a special resolution has been passed by its Shareholders. If a member is not satisfied with the way the company is being run, and if the company is being run in contravention of its own Constitution, they may be able to bring legal action against the offending member.

A well-run business involving more than one partner should always have both a Shareholder’s Agreement and a Company Constitution.