FAQs on Trade Marks
What is a trade mark?
A trade mark is a unique sign that identifies certain goods or services as those produced or provided by a person or entity.
A trade mark, for example, can be one or a combination of letters, numbers, words, phrases, sounds, scents, symbols, shapes, logos, drawings, pictures or aspects of packaging.
Why should I register a trade mark?
A registered trade mark protects your brand and gives you exclusive rights to commercially use, license or sell it.
Is my registered business, company or domain name automatically my trade mark?
No.
Can my trade mark be protected overseas?
Yes. You can file a single international trade mark application in Australia and nominate the Madrid Protocol countries in which you seek trade mark protection, or file a trade mark application in each overseas country that you seek trade mark protection.
The Madrid Protocol is a treaty signed by participating countries to simplify the process for the international registration of trade marks. Please note your trade mark application can be refused by your nominated Madrid Protocol country even if your trade mark is approved in Australia.
Can my trade mark be assigned, transmitted or sold?
Yes.
Can someone else register my brand as their trade mark?
Yes. However, you may have recourse under Australian Consumer Law and at common law for passing-off or misleading and deceptive conduct to protect your brand.
What is the protection period of my registered trade mark?
Your trade mark is initially registered for 10 years and is renewable every 10 years.
What happens if I cease using my registered trade mark?
If you have not used your registered trade mark for 3 years, anyone can apply to the court to cancel or remove your trade mark registration.
What is the difference between the symbols TM and ®?
The symbol TM provides notice of a claim of rights to a trade mark that has yet to be registered.
The symbol ® provides notice of a registered trade mark.
What is the difference between trade mark and copyright?
A trade mark, once it is registered, belongs to the registrant who will have exclusive rights to commercially use, license or sell that trade mark.
Copyright is automatically granted upon the original expression of an idea (but not the idea itself) or creative work. The originally expressed idea or creative work does not have to be registered with any authority or entity. The creator of the originally expressed idea or creative work will have exclusive rights to commercially use, license or sell that expressed idea or creative work. Please note a certain amount of copying of copyrighted works or materials is allowed under fair dealing legislation.
The above content is general in nature and is not intended to address your specific circumstances. We welcome the opportunity to have a chat with you and assist you with your legal issues or concerns. Talk with us and see the difference.
Updated June 2019.