In Australia, a trade mark can be a word, phrase, letter, number, sound, smell, shape, logo, picture, aspect of packaging or a combination of these. A trade mark can also protect your brand name.
One of the main purposes of a trade mark is that it is used to distinguish the goods and services of one trader from those of another.
Registration of a trade mark is not mandatory in Australia; you can still use your trade mark unregistered. However, registration is highly recommended because it can be an expensive and time consuming exercise to take action under common law. Registering your trade mark gives you the exclusive legal right to use, license or sell it within Australia for the goods and services for which it is registered.
A trade mark search of all existing marks is recommended before using a mark or applying for registration. If not, you may find yourself the subject of legal action if the mark you propose to use is already registered or in use by someone else.
The government body which handles trade marks in Australia is IP Australia. In specific it handles and administers patents, trade marks, designs and plant breeder’s rights.
Applications are examined in order of filing, to see if they meet the requirements of the Australian Trade Marks Act 1995.
Applications will then be examined for compliance with the requirements of the Trade-marks Act and Trade-marks Regulations, and IP Australia will then inform you of requirements which are not met by the application or of any objection to the registration of your trade-mark.
After examination your mark will proceed to the advertisement stage. If another person objects to a trade mark being registered he or she can file a notice of opposition with IP Australia in the three month period following the date on which acceptance of the trade mark was advertised in the Australian Official Journal of Trade Marks.
If no oppositions are filed against your mark, or if any opposition filed has been decided in your favour, your mark will then register.
Initial registration is for 10 years from the filing date. It can be renewed within 12 months before or 6 months after its expiry date.
Once your trade mark is registered in Australia, you must ensure that you use your trade mark in a bona fide way or risk making your trade mark vulnerable to removal on the grounds of non-use.
If your trade mark has not been used by you, or on behalf of you, for a period of 3 years, an application for removal from the Trade Marks Register can be made. Usually, this is initiated by an applicant whose registration is being held up by the registered trade mark.
If you have any more questions about trademark registration please see our FAQs or call us free on 0800 862 0370
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