Whether you are new to business or have been operating for some time, you’ll undoubtedly have a logo or design in place that is recognised as belonging to you. The value of this logo or design and your associated reputation cannot be understated. So how do you protect yourself from infringers who would seek to profit from your hard work by using it as their own?
By registering it as a protected trade mark.
If you have yet to pursue or have never looked into how to apply for a registered trade mark, we’re here to explain the process. Take steps to protect your business and reputation by following this easy-to-understand guide.
What Is a Trademark?
A trade mark is a form of intellectual property that can be used to protect a business’s logo, sign, design or phrase. Trademarks help a customer to better recognise your business and what you offer while also protecting you from infringements.
Consider British confectioners Cadbury as an example. Not only do we instantly recognise the font utilised in the spelling of the brand name, but the iconic purple packaging – both of which are trade marked by Cadbury. The combination of these things and their associated reputation means customers can quickly find their products and purchase them.
As a business owner, your trade mark serves the same purpose and can help you become established as a trusted operator in your chosen niche. Additionally, should someone try to deceive customers by operating under your trade mark or one that is substantially similar, you are better protected under the law and better positioned to put a stop to it.
Can I Operate Without A Trademark?
In Australia, you do not legally have to apply for a trade mark. You may choose to use your chosen logo or design and are still afforded some level of protection under the law in some instances. Without registering your trade mark there is no guarantee you can continue to use your chosen brand as other parties may already own existing trade marks that could prevent you from using yours.
However, opting not to register your trade mark can leave you in a somewhat precarious position when it comes to dealing with copycats or infringing behaviour. Proving that someone is unlawfully using your name, logo or design for their own gain can be more time-consuming and therefore more costly if there is no trade mark in place.
A registered trade mark gives you optimal protection and the best position from which to both deter and fight back against infringers. You can learn more about registered vs unregistered trade marks here.
What Can I Trademark?
Before pursuing a trade mark, you’ll need to first determine that you can in fact trade mark the item in question. A business can have more than one trade mark in place to protect different aspects of its image.
Trademarks can take many forms, including but not limited to:
- A single word
- A phrase
- A logo
- A picture or image
- A fragrance
- A song, sound or jingle
- A number and more
You cannot trade mark certain types of intellectual property such as inventions or processes. These can be protected by patents instead. Likewise, creative content including musical scores, books, movie scripts, books or similar cannot be trade marked as these are protected by Copyright laws.
How To Apply For A Trademark In Australia
In Australia, the process of how to apply for a trade mark name is quite straightforward if you have the time to research and complete the necessary paperwork. The governing body for Intellectual Property in Australia has a wealth of information and tools available via their website that can help you understand and navigate the process.
Keep in mind, your trade mark is only valid for protection in Australia. While it is possible to pursue international trade mark registration, this process is much more involved.
Steps For Registering A Trademark
Step 1: Check Your Eligibility
To register a trade mark in Australia, you must either reside or have an agent that operates on your behalf residing in Australia or New Zealand. You will also need to demonstrate that you intend to use the trade mark for the sale of goods or services outlined in your application.
Step 2: Check For Uniqueness
When it comes to how to apply for a registered trade mark, one of the most important steps is to ensure that your proposed trade mark is not ‘substantially identical’ or ‘deceptively similar’ to an existing trade mark.
Failure to check could see your trade mark application rejected on these grounds as it will be viewed as an attempt to possibly deceive or confuse the public. Performing this search is best done via IP Australia’s search tool.
In this step, you should also be mindful of the type of trade mark you are applying for and the class of goods and/or services it falls under. This will ensure you are searching in the right field for possible similarities with existing trade marks.
Watchpoint
Trademarks may also be rejected for reasons other than similarities with existing trade marks. Be mindful not to use imagery, phrases or wording that could be deemed offensive or abusive.
Step 3: Choose Your Preferred Application Service
IP Australia offers two pathways for registration, each with its unique offerings. One offers the chance to have your application reviewed by an examiner before final submission and the chance to modify it as needed. This is recommended for those unfamiliar with trade mark registration.
The other is a straight application with only minor changes permitted once submitted and suited to those who have been through the process before. The fees associated with each vary, the former being more expensive.
Step 4: Prepare Your Documentation
With your submission, you will need to show ownership of the business associated with the trade mark application alongside a representation of your trade mark (e.g. recording, image, printed phrase).
You will also need to list the goods and services you want the trade mark applied to and their related class numbers (all available on IP Australia’s website) and your payment information for settlement of all fees.
Step 5: File Your Application
Applications can be easily lodged online and saved as you go. Once you create an account with IP Australia, simply navigate to the trade mark application page and start the process.
Step 6: Await The Decision
A decision on whether your application has been approved or denied can take a minimum of 7 months in total. Examination alone typically takes three to four months. No matter the outcome, you will be alerted via your online account with IP Australia. If successful, your trade mark is then published in the Australian Trade Mark Search. During this time, anyone who wishes to oppose your trade mark can do so. If there is no opposition or you are successful with defending any opposition, your trade mark will be registered and your application a success.
Your trade mark is now protected for ten years, subject to you using it correctly. You can renew your registration as needed in ten years.
Where To Find Help
Feeling lost about where to begin or having trouble with the application process? At IP Guardian, our patent and trade mark attorneys have decades of experience managing even the most complex trade mark registrations.
Whether you need one or several trade marks registered, we can handle it all with ease.
We are passionate about supporting Australian business owners to protect their reputations, achieve greater success and avoid the pitfalls of infringing behaviour. We offer affordable service from highly qualified attorneys with zero compromises.
If required, our convenient payment options “Protect Now Pay Later” or “Buy Now Pay Later” (BNPL) mean you can protect your business now and pay over time.
Avoid navigating legal jargon and complicated online systems, contact IP Guardian today at 02 9071 0130 to book your obligation-free consultation.
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