What is a trademark?

A trade mark is something, usually a name, logo or both, that is used to indicate the origin of the products (goods) or services that you offer.   Or put another way, it is your brand that is serving to set your goods or services apart from other traders.

For more information see our page on What Is A Trademark?

 

What is the trade mark application process?
Trade marks rights are a known as rights by registration, meaning you must officially register your trade mark to get the full benefit and privilege of a registered trade mark.  In Australia, the government body set up to review the applications for trade mark registrations is IP Australia.  In New Zealand, it is IPONZ, and in the United States it is the USPTO.

There are common reasons why a trade mark may not be accepted upon first examination by a government.  To know more about the trademark registration process and how to apply for a trademark, please see our Before You Apply section.

Why was my trade mark rejected?

When you apply to have a trademark registered, the government reviews your application to ensure it meets their legal requirements.  The main two requirements it considers are whether your trade mark is too similar to a prior registered trade mark (in that country), or whether your trade mark is too descriptive of the goods are services you are providing.  

If accepted, it will be advertised as an accepted application in the Australian Official Journal of Trademarks.  If not accepted, it will receive an adverse examination report, or rejection letter.  This means that your application does not meet one of the legislative requirements. The report will state the grounds for why your application was denied. You have fifteen months (extendible) from the date of the adverse report to address the issues with your application.  

To learn more about what you can do see our Blog post titled Why Was My Trademark Rejected?

What happens if I don't get a trade mark?

This is a great question.  Having an officially registered trademark for your business is not actually a legal requirement.  As long as you are otherwise obeying the legal obligations of running your business, the government will not require you to get a trade mark.

However, if you do not have a registered trademark, you do not have good legal rights to your name or brand. You may not even own your name or your brand.  Therefore, it is advisable to get your name protected with a trade mark. 

See our Blog post What Happens If I Don’t Get a Trademark? for more information.

 

Who enforces your trade mark?
It is your responsibility to ensure that your mark is not being infringed by another party. Government bodies, such as IP Australia, do not monitor trade mark use. If you discover that your mark is being used without your permission you should contact your trade mark attorney or trademark lawyer and take action against the other party.
When can I use the ® symbol?

The ® symbol pertains only to trade marks that are registered, and to use it in respect of an unregistered mark is unlawful. The ™ symbol may be used on any trade mark, whether registered or not, to indicate that you are intending to use your name/logo/packaging as a trade mark.  For a fuller explanation see our page on when to use the “TM” trademark symbol and the ® trademark symbol?

What are the trade mark classes?

When applying for a trademark, the types of goods or services you are wanting to cover are categorised across 45 classes.  This is often one of the most difficult parts to get right for a business owner. However, the government classes are nothing more than just a classification system.  To find out more about how the classes work and what they are, read out post on Trademark Goods & Services Classes.

I have a business name, won’t that stop others using my name?

No.  A business name does not provide you any proprietry rights, and you cannot use it to prevent others from using your name (except in very limited circumstances).  A business name is merely the name under which a business operates. Its function is to allow others to identify the business.  Only a trade mark will provide good legal rights to prevent others from copying your name or logo.

Read more on our page Trademarking a Business Name.

 

Do you provide services other than trade mark applications?

Yes.  We offer a full range of services to get your trade mark registered in Australia, New Zealand and the United States, including searches, applications, oppositions, and responses to the government intellectual property office.  We don’t take on Madrid Protocol applications or trade mark infringement matters, though in both cases we can provide recommendations and also work with your other legal representative.  We can also help identify the intellectual property of your business.

Please contact us via our contact form and we can discuss how we can help you.

Is the spelling trademark or trade mark?

In Australia and New Zealand it is “trade mark”, and in the United States it is “trademark”.  We always use “trade mark” when dealing with IP Australia and IPONZ and providing your advice.  However, the Google bots prefer “trademark” and so that’s what we tended to use on this website.

Who can own a trade mark?

A person or a company may own a trade mark.  A business name is not a legal entity and so cannot own a trade mark (in that case, the person or company who owns the business name should own the trade mark). 

Assignment of a trade mark is relatively straight-forward, and so if you have yet to set up your company, you can own the trade mark personally at the outset and then transfer ownership at a later date.

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