Trademarks

1. What is a trade mark? A trade mark is used to identify a product or a service. It can be a word, name, phrase, letter, number, shape, logo, sound, smell, colour, aspect of packaging, movement, taste, feel, etc. or any combination of these.
2. What rights does a registered trade mark give me? A registered trade mark confers the exclusive right to use the trade mark in the marketing and promotion of goods and services of the class in relation to which the trade mark is registered. Being exclusive, the trade mark owner can enforce the exclusive right and prevent others from using it in relation to that class.
3. Do I have to register a trade mark? No. An unregistered trade mark can be used, but registering a trade mark has the following advantages:
  • It can be owned.
  • It is easier to sell and to license.
  • It is easier to pursue infringers.
4. Is trade mark registration 'worldwide'? No. A trade mark must be registered in each country where having a registration trade mark is sought. The Madrid Protocol provides an efficient way of applying for a trade mark in many countries at the same time.
5. How long does a trade mark last? Initially, for 10 years. Registration can be renewed each 10 years on payment of a renewal fee.
6. How can I find out if the trade mark that I want to register is already registered? You can search the ATMOSS database online at IP Australia's website.
7. How do I make an application to register a trade mark? You can make an application online at IP Australia's website.
8. When can I use the ® symbol? You can use the ® symbol next to your trademark to indicate that it is registered.
9. Is it compulsory to use the ® symbol? No, it is not compulsory.
10. Are there any disadvantages to not using the ® symbol? By using the ® symbol you put potential infringers on notice that your trade mark is registered, and that you have all the exclusive rights of a registered trademark holder, including the right to pursue infringers.
Not using the ® symbol means that you do not communicate those messages.
11. When can I use the ™ symbol? Using the ™ symbol next to your trade mark indicates that it is not registered, but shows that you attach importance and value to your unregistered trade mark.
For example, you may have applied for registration, and until registration actually occurs, you want to call attention to the importance and value you attach to it.
12. Is it compulsory to use the ™ symbol? No, it is not compulsory.
13. Are there any disadvantages to not using the ™symbol? Although your trade mark may be unregistered, you benefit by using the ™ symbol. By doing so you communicate the value and importance you attach to it, and that you may well pursue users who, while entitled to use your unregistered trade mark, may nevertheless be guilty of misleading and deceptive conduct or passing off.
14. Once I register a trademark, can I use it to promote all my products, as well as the ones mentioned in my trade mark application? When you apply for registration of a trademark you must nominate 1 or more classes of goods and services where you intend to use your trade mark.
You can use your trade mark to promote all your products and services within that class, but you cannot use it as a registered trade mark to promote goods and services of a different class.
15. Can I register a trade mark that sounds the same as an existing trade mark, if I use it for different products? If the extent of similarity might lead to confusion between the two, no you cannot register such a trade mark.
  • Last reviewed: 29 Sep 2020
  • Last updated: 21 Jun 2024