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Frequently asked questionsHere are the questions that we get asked most frequently about trade marks - and answers to them:
If you any queries regarding the answer to these questions, our trade marks team would be happy to assist you. Email us contactus@aar.com.au.
1. What is a trade mark?A trade mark is a sign used to distinguish the goods or services of one trader from those of another. Typically, a trade mark is a visual sign, such as a word, name, signature, numeral, device, logo or shape. However, a trade mark may also be a non-visual sign, such as a sound or scent.
2. How do I protect my trade mark?The best way to protect your trade mark is to register it by filing an application to register the trade mark in the Australian Trade Marks Office. Although it is not necessary to register a trade mark, doing so confers very significant benefits. If you don't, it is much easier for your competitors to register the same or a similar trade mark. Also, without a registration, you can only protect your trade mark by relying upon a substantial reputation in a given area. A registration, on the other hand, gives Australia-wide enforceable legal rights in a trade mark, without you having to prove reputation. So enforcing your legal rights in a registered trade mark is simpler, more certain and less expensive than having to rely upon reputation.
3. Does a business name registration give me similar rights?No. A business name registration confers no legally enforceable rights. A business name registration is simply a statutory requirement when a person is trading under a name which is different from that person's name. A business name registration does not give you any legal rights to stop anyone else from using the same or a similar name. A trade mark registration, on the other hand, confers substantial legal rights to stop other traders from using the same or a similar name.
4. Should I also seek domain name registration?A domain name is an internet address, being the address of a particular website. It is generally a good idea for a local company to obtain a ".com.au" domain name based on its company name (eg. "westpac.com.au"). Registrations in other top level domains, such as ".net.au", ".biz.au" and so on may also be obtained. To get a ".com.au" domain name registration, the relevant name must be derived from a company name or registered business name within Australia. A trade mark (whether registered or unregistered) is not sufficient basis on which to obtain a domain name registration in Australia. See our page on domain names for further information.
5. Should I conduct any searches?Before you use a new trade mark or spend substantial time and money gearing up for such use, you'd be well advised to conduct trade mark availability searches to determine whether using it may risk infringing another person's trade mark. The searches also give you a good indication of whether your trade mark may itself be registrable. This applies in each country in which a trade mark is proposed to be used. For instance, if you've been using a trade mark for a substantial time in Australia, but intend to use it overseas, you should probably do availability searches in each country first.
6. How do I protect my trade mark overseas?A trade mark registered in Australia does not give rise to any trade mark rights in any other country, so to get corresponding rights overseas, you usually need to file separate trade mark applications in each country of interest. Under an international treaty, you can now get a single registration that gives protection in a large number of member countries, such as China, Japan, Singapore and most of Europe. See Madrid Protocol
7. How long does a trade mark registration last?A trade mark registration lasts for 10 years, but it can be renewed for further 10-year periods indefinitely, upon payment of renewal fees. If you don't use a registered trade mark for a given time, you risk it being removed from the Register.
8. How long does it take to get registration?It varies, depending upon whether the Trade Marks Office objects. It may object, for example, because of similarities with earlier registered trade marks, or because your mark lacks capacity to distinguish. If there are no objections, you can expect registration in 6-12 months: naturally, if there are, it can take longer. But in most cases, you'll get your registration within 18 months.
9. When should I use the symbols TM or ® with my trade mark?The symbol TM can be used alongside a trade mark at any time, whether or not it is registered. It merely indicates that the relevant word, brand, logo or device is being used as a trade mark. Wherever it is used (eg on packaging, brochures, etc), you should indicate that it is a trade mark. The symbol ® indicates that the trade mark is registered. It is an offence to falsely represent that a trade mark is registered.
10 What are the filing requirements for Australian trade mark applications?In Australia, no power of attorney or authorisation of agent form is required. The following information is required to file a trade mark application in Australia:
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