What is a trade mark?
A trade mark is a way of distinguishing the goods or services of your business from those of other businesses. It gives you exclusive rights to commercially use, license or sell the trade mark. This means that no one else in Australia can commercially use your trade mark within the class of goods and services it's registered under.
Any feature (or combination of features) that distinguishes your goods or services from others can be registered as a trade mark, such as a letter, number, word, phrase, sound, smell, shape, logo, picture or aspect of packaging.
If your business is bringing a unique product or service to market and will be using some form of branding, a trade mark is a legally enforceable way to protect:
- aspect of packaging
- any combination of these that distinguishes your product from another.
Check out IP Australia's Trade marking a colour case study to learn about how a well-known company registered a shade of purple to protect their brand.
Why do I need to register a trade mark?
To protect your business name from being used by someone else, you can register it as a trade mark. A registered trade mark under the Trade Marks Act 1995 gives you the exclusive legal right to use, license and sell your intellectual asset in Australia. The owner of a trade mark can apply for its registration.
Protecting your trade mark will protect the identity of your goods and services, and prevent others from imitating your brand. Having a registered trade mark can be your most valuable marketing tool and can help build the value of your business. A registered trade mark can provide legal protection and enable you to stop others trading with it.
Be aware that registration of a business name, company name or domain name does not in itself give you any exclusive ownsership or proprietary rights to use the business name—only a trade mark can give you that kind of protection.
Ensure you have exclusive use of your business name throughout Australia by registering your business name as a trade mark.
Read about the difference between a business name vs a trade mark.
A trade mark is protected in all Australian states and territories for an initial period of 10 years, after that time you can renew your registration.
How do I apply for a trade mark?
You can apply for a trade mark through the IP Australia website.
Before you apply for a trade mark, you can search IP Australia's Australian Trade Marks Search System to make sure the trade mark you want to use is available. This search will provide you with both currently registered trade marks and trade marks which are being applied for.
You can also apply through TM Headstart (pre-application service) to help you assess the chances of your trade mark being successfully registered.
If you are unsure of what or how to register, seek the advice of your accountant, lawyer or trade mark attorney.
How long does it take to apply for a trade mark?
Generally, your application will be assessed three to four months after you file the application.
If your trade mark is accepted, it will be advertised as an accepted application in the Australian Official Journal of Trade Marks. If anyone wants to challenge your application, they can file an opposition.
If no oppositions are filed against you, or if they are not successful, your trade mark will be registered when you pay the registration fee. You must pay within six months from the date your accepted application is first advertised.
The earliest date that your trade mark can be registered is around seven and a half months from when you first file your application.
Head to the IP Australia website for more information on the timeframes and costs of registering a trade mark.
How much does it cost to apply for a trade mark?
The cost of applying for a trade mark will vary depending on the protection you are seeking. Goods and services are grouped together in classes (e.g. clothing, footwear and headgear are under one class, whereas software is in a different class). You'll pay more if you're trying to apply for a trade mark in more than one class.
Generally, the minimum cost to apply for a trade mark is around $120 for each class. If your application is accepted, you'll need to pay an extra $300 for each class.
Once registered, your trade mark will be protected for 10 years from the date of the application.
What do I need to do after registering a trade mark?
Once registered, the trade mark is protected in all Australian states and territories for an initial period of 10 years. For international protection, you need to register your trade mark in each country you want protection in.
It's important that you use your trade mark—other applicants can apply to have your trade mark deregistered if you haven't used it for more than three years.
What to do...
- Search the IP Australia databases to see if a trade mark similar to yours already exists.
- Determine the suitability of your application using TM Headstart.
- Find out about applying for a trade mark to protect your business name with IP Australia.
- Find out about the full application process.
- Get advice and assistance from patent and trade mark attorneys and legal practitioners - see the IP Australia list of professionals.
- Find information on intellectual property in your state or territory.