Trade Marks Act 1995
Author: Ian Aldridge, Progressive Legal
The Trade Marks Act 1995 is the cornerstone of trademark protection in Australia. Whether you’re launching a new product, scaling your brand, or defending your intellectual property, understanding this Act is essential.
In this guide, we’ll break down how to register a trade mark in line with the Trade Marks Act, how to defend your rights under the Trademarks Act, and what legal protections are available for your brand. Plus, we’ll show how our legal team can help you avoid common pitfalls and secure your competitive edge.
What is the Trade Marks Act 1995?
The Trade Marks Act 1995 (Cth) (‘the Act’) is the primary legislation that governs trademark registration, enforcement, and protection in Australia. It outlines how trade marks are defined, who can register them, and the legal framework for resolving disputes.
If you operate a business in Australia or plan to expand into this market, understanding the Act is crucial. Our experts can guide you through key sections, whether you’re filing a new trademark, managing an existing one, or responding to an infringement.
Trade Marks can be a very tricky area when it comes to choosing the proper classes, supplying evidence of use, obtaining acceptance of your trade mark, defending trade mark infringement or opposition proceedings.
Understanding Australian Trade Mark Law
Trademark law in Australia can be complex. The Trade Marks Act 1995 sets out the specific legal steps needed to protect brand names, logos, slogans, and other identifiers.
A qualified intellectual property lawyer can:
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Clarify how the Trade Marks Act applies to your business.
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Help you meet all legal requirements for registration.
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Advise on risks and enforce your rights if infringed.
Whether you’re registering a new trademark or enforcing one that’s already registered, our experienced legal team is here to support you through every step, from filing to enforcement.
Expert Videos on the Trade Marks Act 1995 & Trademark Registration
This video explains the importance of registering your trade mark under the Trade Marks Act 1995, how it protects your brand, and what risks you face if you don’t.
Learn why choosing the correct legal entity is a crucial step in the trademark registration process. This video breaks down common legal structures and their impact on IP ownership.
Thinking of filing a trade mark application solo? This video outlines the risks, legal traps, and when you should seek professional help to avoid costly mistakes.
Trade Marks Act 1995 FAQs
What is the purpose of the Trade Marks Act 1995?
As noted in the Act, its purpose, broadly speaking, is to provide the legislative framework for the ‘registration of trade marks, collective trade marks, certification trade marks and defensive trademarks.. and sets out [the] rights deriving from registration’. The Act is supplemented by the Trade Mark Regulations 1995 (Cth).
How is the Trade Marks Act arranged?
The Act is fairly extensive and is separated into 22 major parts.
The following table is a quick overview of each part:
| Part | Issue dealt with |
| 1 | Preliminary Matters |
| 2 | Interpretation |
| 3 | Trade Marks and trade mark rights |
| 4 | Application for registration |
| 5 | Opposition for registration |
| 6 | Amendment of application for registration of a trade mark and other documents |
| 7 | Registration of trade marks |
| 8 | Amendment of application for registration of a trademark and other documents |
| 9 | Removal of a trade mark from Register for non-use |
| 10 | Assignment and transmission of trade marks |
| 11 | Voluntary recording of claims in interests in and rights in respect of trade marks |
| 12 | Infringement of Trade Marks |
| 13 | Importation of goods infringing Australian Trade Marks |
| 14 | Offences |
| 15 | Collective trade marks |
| 16 | Certification trade marks |
| 17 | Defensive trade marks |
| 18 | Jurisdiction and powers of courts |
| 19 | Administration |
| 20 | The register and official documents |
| 21 | Miscellaneous |
| 22 | Repeal and Transitional |
Which sections of the Trade Marks Act should I be aware of most?
This will depend on a myriad of factors such as whether you already have a registered trade mark, whether you are seeking assignment of a trade mark, whether infringement has potentially occurred, the complexity of your business and so on.
However, if you don’t know much about trade marks yet; it is always best to start with Part 3 of the Act which describes (among other things) what a trade mark is/ isn’t, as well as the rights conferred on a registered trade mark owner.
Some key sections in Part 3 include:
- Section 17 which defines trade mark as a: ‘a sign used, or intended to be used, to distinguish goods or services dealt with or provided in the course of trade by a person from goods or services so dealt with or provided by any other person’;
- Section 21: which declares a registered trade mark to be a form of personal property, with equities enforceable in the same manner as other equities in relation to personal property;
- Section 22: which provides for the power of registered owners;
- Section 23: which provides for a limitation on rights if substantially identical or deceptively similar trademarks have been registered; and
- Section 26: which outlines the powers of a registered user of a trade mark.
Once you understand what a trade mark is, you may feel more compelled to register it as in accordance with Part 7.
Further, if you have potentially had your trade mark infringed, or wish to be cautious as to potentially
infringing the rights of others, you may wish to be conscious of Part 12. In particular, section 120 which outlines when a registered trade mark is infringed and section 122 which provides when it is not infringed. By being aware of these sections you may feel more confident in enforcing your rights.
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For legal advice relating to the Trade Marks Act, please get in touch with us today via phone or the contact form on this page.
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