Trade marking is an important yet complicated step to completing and protecting your business assets. Simply typing ‘trade mark Australia’ on Google may not answer all your questions. Hence, on this page, we’ll provide you with a simple yet comprehensive guide on how to trade mark in Australia, and why you should do it.
Although there is no legal obligation to register your trade mark in Australia, registering for one is always a good idea to ensure your intellectual property is always protected. After registering for a trade mark, your rights to the mark will be easier to enforce, as you will have what is called inherent rights (which are common law rights) as soon as you use your mark.
Trade marks are registered with IP Australia and are recorded through IP Australia trade mark search.
A trade mark must be registered in the name of an individual, a company or a trust. It is not possible to register a trade mark in the name of a business. Before filing a trade mark application it’s important to make sure that the applicant owns the trade mark. This is particularly important if your trade mark includes artwork (ie, a logo).
The copyright in the artwork must be owned by the applicant. Therefore, the applicant may need to purchase the copyright in the artwork before an application to register a trade mark is filed at IP Australia.
If your registered trade mark is under your name, you may be personally liable if there’s any sort of infringement or any issue with the brand or the trademark itself. 50% of the time, we find when we’re doing searches for people that have had trade marks registered in the past, details need to be changed on the register.
Yes, even more so. And here’s why.
If you’ve been in business for 5/10/15/20 years, you would have accumulated more intellectual property in your brand than you might realise. In fact a lot of investors will insist on trade marks being registered before investing money into a business – that’s how important they are from a risk management perspective.
Also, just because you never had issues with someone infringing your brand before, doesn’t mean it can’t happen now or in the future. Especially nowadays with overseas business trading here, businesses moving inter-state and registering trade marks, business toes can be trodden on fairly easily.
The consequences of having to go through a rebrand can be really scary and they get more costly and more scary, the longer you’re in business. If you’re set on your business name and your designs, it’s time to take some actions and protect your brand.
It’s so easy to do a quick search on ATMOSS to see whether your trade mark is available. All you have to do is to get help from experts to file your trade mark application(s), to make sure you’re doing it the right way.
The Australian trade mark registration process is conducted through IP Australia.
IP Australia is the governing body of all registered intellectual property in Australia.
After filing a normal trade mark application, you will receive a notice of filing within a few days. You’ll obtain confirmation from IP Australia that the mark has been applied for and a priority date allocated.
From there, it usually takes 2 or 3 months for the mark to be formally examined by a trade mark examiner, at which point they will indicate whether IP Australia has any objection to the mark, or if IP Australia thinks anyone else would have an objection.
The full process of obtaining a registered trade mark can take a bit of time but it’s well worth the wait. As soon as you file the application, you accrue further rights all the way up to registration and afterwards. It also means that during that time, you gain these priority rights which you would otherwise not have.
If all clear, then it proceeds to the advertisement stage for a period of 2 months, which allows others the opportunity to object to the mark if they have an objection.
If there is a problem with the mark at the examination stage, an examination report will be provided and give you the opportunity to respond to the objections depending on what they are.
The whole process usually takes 6 or so months but it is well worth the wait to have your intellectual property secured and you receive priority rights the day you file the application.
The most commonly trade marked items for most Australian businesses are the business name, logo, tag-line / slogan / by-line / slap-line, and derivative product names.