Trade Marks in Australia
The advantage of registering a trade mark is that it confers far more benefits than registering a business name, company name or domain name. Marketing is an important business tool, and a registered trademark is crucial in allowing you to protect any value or credibility which you have built on your brand.
What is a trademark?
A trademark identifies a product or service, distinguishing it from the goods or services of other traders. A registered trademark protects any branding element within a business including letters, numbers, words, phrases, sounds, smells, shapes, logos, pictures and aspects of packaging. Registration of a business, company or domain name does not give you that kind of protection.
Registered trademarks are enforceable and a trademark owner can commence legal action to stop others trading with it. Trademarks can be a used to help build market position and stop others from imitating your brand.
The registration of a trademark is effective for 10 years and can be renewed for further 10 year periods provided renewal fees are paid.
Registration of a trademark usually covers the entire Commonwealth of Australia.
There are two ways Australian trademark owners can seek trademark protection overseas. Note, prior to applying for a trade mark overseas, you must have applied for that same trademark in Australia. The first way to trademark overseas is via an application filed directly to each country. The second is via a single international application filed through the World Intellectual Property Organisation (WIPO) nominating the Madrid Protocol countries in which protection is sought.
Applying for a trademark
Before making an application to register your trademark, the following should be considered:
- An application to register your trademark could be rejected if there is an identical or similar trademark already registered that covers similar goods or services. A search should be carried out before applying to register a trademark to check that a similar trademark is not already registered.
- Only minor changes can be made to a trademark once an application has been filed and published.< class=”icon-right-circled”/li>
- Trademark registration is for the goods and services you actually trade in or intend to trade in in the near future. Once an application is filed and registered, goods and services cannot be added. Therefore, you should clearly define the marketplace you trade in to ensure the best possible protection.
- Your trademark must be something that is capable of distinguishing your goods and services. As exclusive rights will not be granted to everyday language, names and descriptions of products and services are difficult to register.
Once you are happy with your trademark, you can apply to register it through the IP Australia website. You can also request an assessment of the likelihood of your trademark achieving registration through TM headstart.
The cost of applying for a trademark will vary depending on the scope of the application. Generally, the minimum cost to apply is $250 for each class of goods and services. In Australia, there are 45 different classes of goods and services. Each additional class registered in will cost an additional $250 – so costs can add up quickly.
The application process
Once your trademark is accepted, it will be advertised in the Australian Official Journal of Trade Marks and the application is open to opposition for a period of 3 months (which can be extended for a further 3 month period).
If your application is not challenged, your trademark will be registered once the registration fee is paid (which must be paid within 6 months from the date acceptance is advertised).
The registration of a trademark in Australia takes a minimum of 7 ½ months after an application is filed.
Conclusion
Applying for an Australian trademark is a straightforward process. By investing in protecting your brand today, you can avoid the costly and uncertain exercise of preventing unauthorised use of your unregistered trademark.