Before you apply

Before applying for trade mark protection, you should make sure that you meet the eligibility requirements.

Not sure which type of application you need? We can help you to get the right trade mark.

Are you eligible?

When you apply for a trade mark, the owner must be one of the following:

  • an individual
  • a company
  • an incorporated association
  • a combination of these

A business name or trading name is not acceptable as the name of the applicant. The owner(s) of the business registration would be the applicant. If your trade mark is owned by a corporation, the application should be made in the corporation's name and not in the name of directors or shareholders. A trust is to apply in the name of the trustees.

An association, whether incorporated or not, may apply for a collective trade mark.

You must use, or intend to use, the trade mark in relation to the goods or services included in the application.

If the trade mark is to be used by a corporate entity that is about to be formed, the applicant will need to assign the trade mark to the new body once it has been formed.

Do you know which type of application you need?

You can apply via eServices for a TM Headstart (pre-application service) or a standard trade mark. These two products suit different purposes.

For more information see our overview of the difference or we can help you to get the right trade mark.

Is your trade mark likely to be accepted?

Before you apply for a trade mark registration, make sure your trade mark is unlikely to conflict with another trade mark.

You can submit a TM Headstart (pre-application service) request for an initial assessment if you are unsure or conduct a search of the Australian Trade Mark Online Search System (ATMOSS) and other goods and services existing in the market place to ensure that you will not be infringing any existing trade marks.

Before you submit a trade mark application or TM Headstart (pre-application service) request, there are a number of things to consider. 

Will your trade mark be accepted for registration?

Your trade mark must distinguish your goods or services from others in the marketplace. For this reason, you will find it difficult to register trade marks that fall into the following categories as these are prohibited signs:

  • denote the kind, quality, intended purpose or value of the goods or services
  • are common surnames or geographical names
  • conflict with an earlier trade mark
  • would mislead the public about the nature of the goods or services

Some words, such as 'Olympic Champion' are protected by law and cannot be registered as a trade mark under the Trade Marks Act 1995. Other words are affected by other legislation, such as the use of the word 'champagne', which is governed by provisions of the Australian Wine and Brandy Corporation Act 1980.

Is my trade mark sufficiently different from other registered trade marks?

Your trade mark will be difficult to register if it is too similar to another trade mark on our database that covers goods or services which are too much like yours.

Important note: The reasons above are the most common reasons for trade marks being difficult to register. There can also be other less common reasons. We will advise you if any of these apply to your trade mark.

Fees are not refundable if your trade mark can not be registered.

Last Updated: 24/4/2014

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