Australian Trademark Registration

Why Australian Trademark Registration Is Essential for Your Business

Registering a trademark in Australia is one of the smartest ways to protect your business brand and intellectual property, but the process can feel overwhelming without expert help.

Simply typing ‘trade mark Australia’ on Google may not answer all your questions.

Trademarking ensures you legally own the exclusive rights to your business name, logo, or slogan, protecting your brand identity from competitors.

After registering a trade mark, your rights to the mark will be easier to enforce, as you will have the exclusive right to the use and registration of the registered trade mark as soon as it’s registered under the Trade Marks Act. The great thing about that is that you don’t have to prove reputation in the market, whereas you would if you only have misleading and deceptive conduct under the Australian Consumer Law, or the tort of passing off, to rely on.

Without registering your trademark, you’re left relying solely on inherent rights, also known as common law rights, which can only be established over time through continuous and widespread use of your brand. This makes it significantly harder and riskier to prevent others from using a similar mark.

It’s also important to understand that registering a business name, company name, or domain name does not grant you any exclusive legal rights to your brand. The only way to obtain enforceable, exclusive rights to your brand elements is through official trademark registration in Australia.

Difference Between Registered and Unregistered Trademarks in Australia

If your trademark is registered under the Trade Marks Act 1995, you can immediately enforce your exclusive rights. This legislation protects your brand for the specific goods and services you’ve registered, helping maintain your reputation and business goodwill.

Enforcing rights over an unregistered trademark, however, is much more complex. You would need to rely on legal claims such as misleading or deceptive conduct under the Australian Consumer Law, or pursue a tort of passing off. These claims require proof of ownership, evidence of misrepresentation, and actual or likely damage to your brand’s reputation.

In short, it’s significantly harder and riskier to defend an unregistered trademark in Australia.

What You Can Register as a Trademark in Australia?

You can register much more than just a business name as a trademark in Australia. Any distinctive sign that helps consumers identify your goods or services and distinguish them from competitors may be eligible. This includes:

• Business names and product names
• Logos and taglines
• Words, slogans, and phrases
• Sounds, scents, shapes, colours, or even movements

However, generic or commonly used signs usually cannot be trademarked. If your brand uses terms that are too broad or descriptive, it may not qualify for trademark protection, as these must remain available for general use by other traders.

Trade marks are registered with IP Australia and are recorded on the Australian Trade Marks Register, which is publicly available for trade mark search.

Who can register a trade mark?

In Australia, a trademark must be registered in the name of an individual or a legally incorporated company. You cannot register a trademark under a business name alone, as a business name is not considered a legal entity.

Before filing a trade mark application, it’s important to make sure that you’re listing the correct applicant. The listed applicant will legally own the trademark. Filing under the wrong name can lead to serious legal issues or complications in enforcement down the line.

The basic rule to establish correct ownership is:

The person or company that controls how the trademark is used must be listed as the owner. This ensures proper legal protection and clarity of rights.

Additionally, any artwork (such as a logo) included in your trademark application must also be owned by the applicant. If the copyright belongs to someone else, such as a designer, you must have the copyright formally assigned to you before applying.

Why it’s vitally important to register your trade mark in the correct legal entity.

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.

Incorrect trademark ownership also weakens your legal position. Anyone can oppose or challenge your trademark application if the listed applicant is not the actual owner or controller of the trademark.

Accurate ownership ensures enforceability, limits liability, and protects your rights.

Do you need to register a trade mark if you’ve been in business for a while?

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 process to register a trade mark in Australia

The Australian trade mark registration process is conducted through IP Australia. IP Australia is the governing body of all registered intellectual property in Australia.

1. Pre-Application Search and Classification
   Before applying, it’s essential to identify the correct classes of goods and services relevant to your business. Use the trade mark search tool to check if your desired trademark is available and not already registered.
2. Submit Your Application
   Once you file your trademark application, you’ll receive a formal notice of filing within a few days. This confirms that IP Australia has received your application and assigned a priority date to your claim.
   
3. Examination Period
   Within 2 to 3 months, your application will be reviewed by a trademark examiner. They’ll assess whether your trademark meets legal requirements and whether there are any objections from IP Australia or the public.

While the process can take time, successfully registering your trademark provides long-term legal protection for your brand in Australia.

The process of registering a trade mark in Australia explained in 2 minutes by Ian

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.

What happens next?

If all clear, then your trade mark is accepted and 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 no oppositions are received, IP Australia will issue a certificate of registration for your trade mark.

If there is a problem with the mark at the examination stage, IP Australia will issue an examination report gives you the opportunity to respond to the objections depending on what they are. You’ll have 15 months to resolve any issues listed in the report, and may be able to arrange for more time by requesting deferment or extensions of time.

How long does it take to register a trade mark?

The whole process usually takes 8 or so months but it is well worth the wait to have your intellectual property secured and you receive priority rights from the day you file the application.

How long is my registered trade mark valid?

If you keep using your trade mark and pay the renewal fee due every 10 years – indefinitely!

The most commonly trade marked items

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.