What is a trade mark? Do you need a registered trade mark for your business?
Every business in operation seeks to differ itself from the services or goods provided by similar businesses.
To do this effectively, a business might consider registering a trade mark for their business name, logo or even their slogan or jingle.
The law concerning trade marks is contained within the Trade Marks Act 1995 (Cth). Intellectual Property Australia (IP Australia) is the government department that manages registered trade marks.
A trade mark is a way of identifying a unique product or service. It’s about showing the wider community who you are. While a business name can be registered via ASIC, and a similar or identical domain name purchased, they do not of themselves prevent other businesses from registering a similar business names or domains.
A trade mark protects your brand against other businesses who might try and profit off your reputation by creating a similar business using a similar name, domain, logo or slogan. A recent example of a trade mark dispute involves McDonald’s Big Mac and Hungry Jacks new burger, the Big Jack. The successful registration of the Big Jack trade mark reminds trade mark owners of the importance of businesses to actively protect their trade mark and monitor the trade mark register for any similar marks filed by competitors.
A trade mark can be a letter, number, word, phrase, sound, jingle, smell, shape, logo, picture, movement, aspect of packaging, or a combination of these.
Famous Australian trade marks - image courtesy of wptn.com
A trade mark does not have to be registered. A trade mark can exist even if you have not officially registered it. An unregistered trade mark can be identified by using the ™ symbol next to your logo or phrase. Whilst an unregistered trade mark will still afford you some protection under the law, by registering your trade mark you will hold the exclusive rights to use, licence and sell the mark.
A registered trade mark is identified with the ® symbol. It can be a valuable selling tool because the value of your trade mark increases with the success of your business. By registering the trade mark, it will be easier to prove your ownership of the mark if you ever need to take legal action to prevent others using the same or a similar mark.
Trade mark registration lasts for ten years, and a renewal can be obtained by paying a fee. You will be responsible for enforcing your mark in the event that another business attempts to use your mark or something similar.
For a list of the fees payable to IP Australia to register a trade mark, visit IP Australia’s fees and charges page.
To register a trade mark, you will need to:
Determine whether the trade mark you wish to register fits in with the requirements for a registrable trade mark. You may need to consult with a lawyer to determine whether your mark can become a registered trade mark or not.
Run a search using IP Australia’s trade mark search page to determine that the trade mark you wish to register hasn’t already been registered by someone else.
Decide on the type of trade mark you wish to register.
Decide what classes you want your trade mark to be registered in (visit IP Australia’s classes list to identify which classes you may require).
Decide whether to apply for the trade mark yourself, or engage the services of a lawyer to assist you. Trade mark applications can be completed online. The application fee will vary depending on the way in which you apply for the trade mark (there is a pre-application service called TM Headstart which is offered by IP Australia).
After the trade mark application is lodged, the trade mark will go through an examination process. If the trade mark passes the examination process, it will become a registered trade mark.
Ardent Lawyers have been involved in registering trade marks for local small businesses between Nowra and Ulladulla in the Shoalhaven and all across Australia.
We offer an initial consultation for $220 incl GST to discuss your trade mark and determine whether your trade mark can be registered and what is involved in the registration process moving forward. We will also provide you with a fee quote during our initial consultation.
If you are thinking about registering a trade mark for your business, get in touch with us by calling (02) 4444 6808, emailing contact@ardentlawyers.com.au or using the Contact Us form on our website.
