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Trade Marks

What is a Trade Mark?

A trade mark is a sign used by a trader to distinguish their goods or services from those of other traders.

Trade marks can take many forms including:

  • words, phrases or slogans
  • acronyms or numbers
  • logos or designs
  • other non-traditional formats, such as sounds, scents, colours, shapes, animations and movement
  • a combination of any of the above

Trade mark registration is a legally-recognised way to protect your business‘ brand and the brands used for your goods or services.

It‘s important to remember that a registered trade mark is not the same as a registered business name, company name or domain name. You can read more about the differences between business names and trade marks here.

Registered vs Unregistered

Trade marks can be registered or unregistered.

An example of an unregistered trade mark is a product name or trading name that is used by a trader, but not registered on the official trade marks register. Unregistered trade marks do not enjoy the same legal protections and rights as registered trade marks.

Registered trade marks are those which have been registered on the official trade marks register. The register in Australia is administered by IP Australia. Trade Mark registration confers statutory protections and rights under the Trade Marks Act 1995, including:

  • legal ownership of the registered trade mark
  • the ability to license or sell the trade mark to others
  • the right to prevent others from infringing the trade mark
  • the ability to use the ® symbol with the trade mark.

Registration Process

Australian Trade Marks

An application for registration of a trade mark in Australia is managed by IP Australia.

To obtain registration, the application must pass through a number of stages:

  1. Preparation - the application is planned and prepared for lodgement
  2. Lodgement - the application is formally submitted to IP Australia for consideration
  3. Examination - a trade marks examiner assesses the application and raises any problems
  4. Advertising / Opposition - once examination is passed the application is advertised to allow third-parties to oppose registration
  5. Registration - when the application has passed all previous stages, a Certificate of Registration is issued. The owner can renew the registration every 10 years.

The earliest a trade mark application can reach registration is approximately 7½ months after the date the application is lodged. Find out more details about the Application process in Australia here.

International Trade Marks

If you intend to use your trade mark overseas, it‘s important to consider international trade mark registrations.

There is no such thing as a ’global‘ trade mark, so the relevant territories or countries need to be identified.

There are 2 main methods to apply for international trade mark registration:

  • Madrid Protocol - an international system for registration in over 100 countries and territories
  • filing a direct application in the relevant country or territory

The best method will depend on a number of factors, including cost, whether there is an underlying Australian trade mark application and the number of countries or territories in which protection is needed.

The international registration process typically takes longer than Australia. While many territories follow a similar process to Australia, the speed and strictness of the application process can vary considerably between each territory.

How we can assist

Xuveo Legal provides advice and assistance in all areas of trade mark protection.

Whether you are planning a rebrand, launching a new brand or maintaining your existing brand, we can help you protect it through trade mark registration.

If you discover third party infringement of your trade mark, we can help you take action to protect your rights.

We can assist with:

  • trade mark strategy and advice
  • pre-application searches
  • applications for registration in Australia
  • international applications under the Madrid Protocol and via in-country agents
  • opposition to registration
  • non-use removal actions
  • renewal of registration
  • trade mark enforcement and disputes

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