FOR IP PROFESSIONALS

Is a trade mark the right choice?

If you want to establish a brand for your product or service, you should consider creating a distinctive trade mark.

A trade mark protects the identity of your goods and services. Once you register a trade mark, you have the legal right to use, license or sell it within Australia for the goods and services for which it is registered. You also have the right to prevent others from using it.

If you do not register your trade mark, another trader could register your brand as a trade mark and you could be forced to defend your rights  - you may even need to rebrand.

Are you eligible?

  • To apply for a trade mark, you must intend to use it.
  • The owner of the trade mark must be an individual, a company, an incorporated or unincorporated association or a combination of these.
  • You cannot apply for a trade mark in a business name, but you may apply for a trade mark in the name of the individuals who own the business.

Is your trade mark suitable?

We offer the TM Headstart (pre-application service) service (for a fee) to provide an early assessment of the likely acceptance of your proposed trade mark.

Using another person's trade mark

Using another person's trade mark as your own is against the law. Known as 'passing off', it means to wrongfully appropriate someone else's business reputation. To engage in conduct that is misleading or deceptive or is likely to mislead or deceive members of the public is an offence under the Competition and Consumer Act 2010.

Searching the trade mark database will not protect you from infringement under common law for passing off or misleading and deceptive conduct.

If someone has been using an unregistered trade mark for a sufficient period and has built up a reputation, they may be able to prevent you from using the same name, logo etc, regardless of whether or not you have registered it as a trade mark.

For example, if a company has used 'Freshies' as a name for their bread products over many years, but has never registered this as a trade mark, they may be able to prevent you from using 'Freshies' on your bread products. This is the case even if you register 'Freshies' as a trade mark.

Last Updated: 03/4/2014

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Doctor of Philosophy in Chemistry

Patent Examiner since 2011
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