We’re experiencing delays in general examination of trade marks and TM Headstart assessments. We apologise for any inconvenience. For a status update, please refer to our trade marks response times.
Once you have submitted your trade mark application, it will go into a stockpile to be examined. Depending on the nature of your application, the time period it will take to be examined will vary. For further information about response times see Trade marks responses times.
When your application is ready for acceptance, it will be accepted and advertised for opposition purposes. It's important to know that, no matter which way you file your trade mark application (general examination or TM Headstart), you will wait at least 7 months from when your trade mark is filed until it becomes registered. This allows us to ensure we meet our international agreements.
The examination process of a trade mark simply means that our examiners check your application to make sure it contains all the correct information and meets legislative requirements.
Sometimes, applicants have done something as simple as listing their trade mark under the wrong class on their application. It is the examiners’ job to pick-up on such errors. Something as simple as this can mean your application does not meet requirements.
While some errors can be easily corrected, others cannot. This is why it is imperative you get your application right and do your homework before you apply. Mistakes can be costly and refunds are not given if you have made errors in your application and have to re-submit it.
If your trade mark application does not meet our legislative requirements you will be sent a report explaining your application’s problems. This report will outline the grounds for the examiner’s finding and may provide options for overcoming them. In certain circumstances you may be able to overcome these problems by providing us with what we call evidence of use.
For example, we may have stated in your adverse report that there is already a trade mark on the register that is similar to yours. However, if you can satisfy certain criteria under evidence of use, for example, then the examiner may reconsider their adverse finding or accept your application on the basis of the evidence.
If your trade mark application meets all requirements, it will be advertised for a two month period in which third parties may oppose registration. If it is not opposed, the trade mark will be registered and you will be notified in writing. Your trade mark will then be entered in the Australian Official Journal of Trade Marks (AOJTM) and its status will show as 'Registered' in Australian Trade Mark Search.
Your trade mark application and related documents may contain confidential or commercially sensitive information. Some customers don’t want all the information about their trade mark revealed because it contains information that may aid their competitors.
If this is the case and you want to protect your confidential evidence, you should separate the information you want to keep confidential from the remainder of your submissions and mark it as confidential.
Deferment of a trade mark
When a trade mark can’t be accepted for registration, and certain circumstances exist, the due date for addressing any problems can sometimes be deferred. In this case it’s important to understand deferment of a trade mark.
When you submit your application for trade mark, it will be examined to make sure it meets all requirements under the appropriate legislation.
Sometimes, commercial factors may mean that the timing of your application approval is vital.
You can ask for an expedited examination if you will be seriously disadvantaged because of the time taken to process your applications. For example, there is court or legal action expected or underway, or if there are urgent commercial reasons such as pressing launch dates or issues with a competitor.
Your request must be accompanied by a witnessed declaration detailing the reasons for your request and can be submitted online using our online services.
Opportunity to be heard
If the examiner does not accept your application, you have the opportunity (subject to payment of a fee) to be heard before the application is finally rejected.
However, the quickest and most efficient way of resolving difficulties in the first instance (where possible to do so) is to respond to the examiner’s report by addressing the reasons the examiner has given for not accepting the application. If you have done this without success and still believe that your application should be accepted, you might consider applying to be heard.