Standard trade mark application

Businesses throughout Australia and the rest of the world depend on the unique traits of their goods and services to set them apart from their competitors. If these differences aren’t protected by a trade mark or another form of intellectual property protection, it can have negative consequences for a business.

Intellectual property law in Australia recognises two main types of standard trade marks which are registered and unregistered trade marks. Both registered and unregistered trade marks are enforced by their own regulatory bodies and are defended differently following an alleged infringement.

What is a registered trade mark?

Registered trade marks provide the most protection and are protected under the Trade Marks Act and are added to a register that can be freely searched by the public. This decreases the likelihood of other businesses infringing your intellectual property.

The Australian Securities and Investments Commission (ASIC) now searches this database before a newly formed company can register its name. In these cases, possessing a registered trade mark assists in preventing competitors from infringing the brand you’ve worked hard to create.

What can I include in a trade mark application in Australia?

A trade mark is something that constitutes a unique identifier for a company’s product or service. It’s an important part of intellectual property protection in Australia, ensuring that a company’s hard-earned brand value can be protected from other businesses infringing.

A common type of trade mark that most people will recognise is a company logo, such as Coca Cola or McDonald’s. A company logo is generally a combination of shapes, letters, colours and numbers are instantly recognisable by the general public, and a directly associated with the company they represent.

However, trade marks aren’t just limited to visual identifiers. As well as logos, symbols and fonts; sounds and smells can also be registered as trade marks in Australia. For businesses that depend on the uniqueness of these features to appeal to their customers, registered trade marks are an integral aspect which considering intellectual property protection.

How can I protect a trade mark in Australia?

If you feel your trade mark has been infringed, it’s worth consulting intellectual property lawyers in Australia to ensure you are getting the best protection possible. On top of this, there are also a number of ways businesses take preventative measures to reduce the risk of their trade mark being infringed.

For businesses with a registered trade mark, it’s wise to display the registered trade mark symbol (®) whenever possible, as this ensures that consumers and other business are aware that the trade mark is protected.

Businesses also need to be careful to protect their intellectual property internationally, as registering a trade mark in Australia only protects against infringement within Australia. This is particularly important as the internet is essentially a global market, and protection may be needed in more than just Australia.

It’s also important to note that trade marks need to be used to prevent them from being struck from the register. In Australia, if trade marks go unused for three years, other people can request removal from the trade marks register.

How is an unregistered trade mark different?

While not offering as much protection, unregistered trade marks are still privy to a few forms of protection afforded to their registered counterparts, but protecting unregistered trade marks against infringement can be more costly and difficult.

Instead of being protected by the Trade Marks Act, unregistered trade marks in Australia are defined by common law and the Consumer and Competition Act. With these trade marks, it is also an offence to use the registered trade mark symbol (®).