A trade mark can be your most valuable marketing tool. Sometimes called a brand, your trade mark is your identity - the way you show your customers who you are. The more successful your business, the more valuable your trade mark becomes.
You can produce a trade mark and use it to promote your goods and services without registering it. You can even add a TM (for trade mark) to your product labels. This is not illegal but such trade marks have no registered, intellectual property (IP) protection.
Only registered trade marks can carry the ® symbol. Once your trade mark is registered, placing the ® symbol immediately next to your brand puts others on notice to respect your trade mark.
If your trade mark is registered overseas but not in Australia, you can also use the symbol, but you need to show the country of registration close to it.
While there are no penalties for using the TM symbol, it is an offence to use the ® symbol if the trade mark is not registered. We do not monitor infringements of the ® symbol so if you have concerns you can contact the Australian Federal Police, Customs Border Patrol or an IP legal specialist and perhaps take action to prevent further use.
Using another person's trade mark
Using another person’s trade mark (whether it is registered or not) as your own is against the law.
Known as 'passing off', it is an offence under the Competition and Consumer Act 2010. Under certain circumstances, even unregistered trade marks can have some value under common law and other state based fair trading legislation.
This may be the case if someone has been using an unregistered trade mark for a sufficient period and has built up a significant reputation. They may be able to stop you using the same name, logo or trade mark whether you have registered it or not.
For example, if a company has used 'Freshies' as a name for breads over many years, but has never registered this as a trade mark, it may be able to stop you from using 'Freshies' on your breads. This is the case even if you register 'Freshies' as a trade mark.
Even though it is possible, protecting your trade mark without the benefit of registration may be more difficult and expensive in the long run.