Australia trademark use requirement [Best Answer]



Last updated : Sept 8, 2022
Written by : Billy Almstead
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Australia trademark use requirement

What constitutes use of a trade mark in Australia?

Use 'as a trade mark' is use of the mark as a 'badge of origin' in the sense that it indicates a connection in the course of trade between goods and the person who applies the mark to the goods ...

Do I have to use my trademark?

By law, you need not request permission to use a trademark belonging to another if it is for an editorial or informational use. Trademark law protects distinctive words, phrases, logos, symbols, slogans, and any other devices used to identify and distinguish products or services in the marketplace.

Do I need a trademark Australia?

If you want exclusive rights to your business name, you'll need to protect it with a trade mark. This will help you: protect your name and stop others from trading with it. get exclusive use of that trade mark throughout Australia.

What are two requirements for a trademark to be registrable in Australia?

  • No conflict with existing trademarks. Your trademark must not conflict with pre-existing registered (or unregistered) trademarks.
  • Sufficiently distinctive.

Can I use TM on my logo Australia?

You can produce a trade mark and use it to promote your goods and services without registering it. You can even add a TM (for trade mark) to your product labels. This is not illegal but such trade marks have no registered, intellectual property (IP) protection. Only registered trade marks can carry the ® symbol.

How do I prove a trademark is used?

  1. Photographs that show the mark on a tag or label affixed to the goods.
  2. Hangtags or labels with the mark and the generic name of the actual goods on the tag or label and informational matter that typically appears on a tag or label in use in commerce for these types of goods.

Can I put a Nike logo on a shirt for personal use?

In fact, copyright and trademark violations can in some cases lead to criminal charges. Selling shirts with copyrighted images isn't impossible, but you should never use someone else's logos on your T-shirts or other clothing without their explicit permission.

What if someone uses my trademark?

If the person or entity receives your letter and continues to use your trademark, it's time to file a lawsuit. The suit will get filed in federal court if it spans more than one state. If the infringement is local, it may get filed in a state court.

Can I trademark a name that is already in use but not trademarked?

If you're wondering, "can you trademark something that already exists," the simple answer is "no." Generally speaking, if somebody has used a trademark before you, you can't register the trademark for yourself.

Can I use TM without registering?

The (TM) symbol actually has no legal meaning. You can use the symbol on any mark that your company uses without registering it. The most common use of the TM symbol is on a new phrase, logo, word, or design that a company plans to register through the USPTO.

Can I register a business name and not use it?

When you register a company name at Companies House, it is protected by law so no other business can use it. Trading names do not receive this protection, which means that if someone wanted to register your trading name as a limited company, they could do so, whilst also demanding that you stop using it.

How long does a trademark last in Australia?

A trade mark is protected in all Australian states and territories for an initial period of 10 years. It can then be renewed every ten years, for a fee. You can renew your trade mark registration 12 months before the renewal date or up to 6 months after. If you renew after the due date you may have to pay a late fee.

What amounts to use of trademark?

held that a website that displays the trademark, the product, and a means to buy the product has been held to be sufficient to establish use of the trademark in relation to the goods.

Can I use part of a trademarked name?

If you are going to use part of the trademark for very similar goods/services, then there may be a trademark infringement issue, and it may depend, to some degree, at least, on whether there is a crowded field of similar trademarks for similar...

How long does it take to register a trademark in Australia?

It will take a minimum of 7 and a half months to register a trademark in Australia. Finding out as much as you can about trademark registration can help to clarify and map out a timeline to complete this process.

What is the difference between TM and R in Australia?

Once your trade mark is registered, you can display the ® (R) symbol next to it whenever it is used. This symbol is different to the ™ (TM) symbol, which can be used for any trade mark, even if it has not been registered. It is illegal to use the ® (R) symbol if you have not registered your trade mark.

Should I use TM or R on my logo?

You do not have to have registered a trademark to use it and many companies will opt to use the TM symbol for new goods or services in advance of and during the application process. The R symbol indicates that this word, phrase, or logo is a registered trademark for the product or service.

How do you copyright a logo in Australia?

Applications for Trademarks in Australia need to be made online through IP Australia. You'll need to provide a variety of information, including: Your personal or company name and contact details. Representation of the Trademark (word, logo, tagline, etc.)

Can I make my own Nike shirt and sell it?

No, you may not lawfully affix your company logo to a tee shirt that's already branded by Nike or another sports clothing company and then sell that shirt. That's trademark infringement.

How do you avoid copyright infringement with T-shirts?

  1. Check material for its copyright before using it.
  2. Find non-copyrighted materials.
  3. Pay for designs.
  4. Change existing designs to make them your own.
  5. Create your designs from scratch.


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Australia trademark use requirement


Comment by Deon Cicciarelli

hi everyone thanks for joining us today for legal visions trademarks 101 webinar my name is rebecca jones and i'm a registered trademark attorney and practice leader in the trademark team at legalvision my name is gracie chen and i'm a lawyer in legal visions ipt specializing in trademarks so our team works closely with a range of clients from startups to enterprises and assist with many aspects of ip and trademark protection including brand protection advice drafting and filing trademark applications in australia internationally responding to trademark objections and enforcing trademark rights in australia today we're going to take you through some trademark fundamentals we'll discuss the life cycle of a trademark some common pitfalls we'll also discuss some practical steps that you can take to protect sorry to protect and enforce your trademark rights we should have time for some questions at the end so please feel free to send these through as we go all right so we'll jump right in um and we'll start with looking at what actually is a trademark so a trademark of any sign that you use to distinguish your goods and services from those of other people and can be a word business name logo slogan color sound and even a smell the most common trademarks that a business will initially protect are the business name and logo and as your business grows however you might find that there are other aspects of your branding that form a large part um of your business and identity it should also be protected so an example of this is mcdonald's so they have the name mcdonald's registered as a trademark um the golden arches symbol and the slogan i'm loving it these are all separate trademarks that mcdonald's uses to represent their company and rent yeah mcdonald's is a great example to demonstrate the different trademarks that a single company can own and have a reputation in so another example of this is nike so this company owns separate trademarks for its business name nike it's tick or swish logo and the slogan just do it as gracie mentioned all sorts of signs can be registered as trademarks some examples of the more unique or non-traditional trademark registrations are cadbury's colored trademark for the colored people in relation to chocolate products and nokia's sound trademark for the well-known nokia ringtone as gracie noted the most common trademarks are a business or product name a logo or a slogan the other more non-traditional trademarks are relatively uncommon particularly set or smell trademarks in fact there are only two of these types of trademarks on the register in australia one being for the smell of eucalyptus applied to golf teas and the other being for the smell of cinnamon applied to furniture products so you might have seen the tm or r symbol used next to a trademark so the tm symbol is used when you want to claim rights in a trademark and can actually be used anytime before registration so if you're yet to apply to register your trademark or it's pending with irp australia you can use the symbol to show the public that you consider the mark as a trademark once citroen mark is officially registered and you've received a registration certificate from if you australia you can use the r symbol so displaying the r symbol can be important for putting competitors on notice of your registered rights in a trademark yeah as gracie mentioned the arsenal can only be used on trademarks once they have been registered and some people don't realize that it's actually an offence under the trademarks act to use the r symbol on an unregistered trademark so it's definitely worthwhile to know the difference now a common area of confusion for businesses is the difference between business name registrations and a trademark say you're establishing your business you've incorporated your company you've registered your business name with ethic and you've secured the top level domains for your name people are often surprised to learn that taking all of these steps doesn't necessarily mean you will be able to use your trademark the business name registration helps you to comply with essex requirements but it does not give you any separate rights in the name as a trademark although your trademark and your business name registration will often match a business name registration and a trademark registration are two entirely different things it's not compulsory to register your trademark although it is certainly best practice to obtain trademark registration and there are a number of important benefits and protection flowing from registration which gracie will discuss in a moment i also just wanted to mention that aside from trademark registrations there are also unregistered trademark rights that can exist so trademark rights can begin accruing from the moment you first adopt and use the trademark in relation to your goods or services so if you if you have commenced use before registering your trademark you actually might have started accruing rights in the trademark as you built up your reputation in the name as mentioned it's still best practice to register your trademark yeah that's a really good point um and as a couple benefits of trademark registration a registered trademark maximizes your brand protection and affords you with a number of rights both legal and non-legal first and foremost having a registered trademark provides you with an exclusive legal right to use that trademark in connection with the goods and services it's registered for so as rebecca mentioned having a business name registration doesn't provide this right so this means that you would have the power to commence action against anyone who is using the same or a similar trademark to you in connection with similar goods and services competitors are less likely to copy or misuse the trademark that's registered and without trademark registration it might be more difficult to stop those parties from copying your friend trademark registration also creates a financial asset that you can license and sell to third parties so you should ensure that you have registered rights to a trademark first before giving someone else permission to use that trademark so this would be relevant if you franchise your business for example to ensure that you have maximum control over how your franchisees will use your trademarks and branding on a similar note you shouldn't be selling a trademark to someone else without having trademark registration in place this is particularly relevant should you ever want to sell your business and it's something that a purchaser will want to know before buying business trademark registration is also important for attracting investment for your business in fact most investors will want to know if you have trademark protection for your brand because it increases your brand's credibility and reduces the risks of disputes with competitors so this means that investors can invest in your business with a greater sense of security and finally registering your trademark will significantly increase your businesses professional image and reputation being able to promote your tradem


Thanks for your comment Deon Cicciarelli, have a nice day.
- Billy Almstead, Staff Member


Comment by Geraldo

trademarks are a great way to protect your brand they're an important piece of intellectual property which help to distinguish your products goods and services from your competitors trademarks can include things like logos taglines or brand names however not everything is capable of being protected errors or delays in your application can be costly it's important to make sure you file your trademark as soon as possible to avoid a similar trademark being registered first you can do searches to see registered and unregistered marks in australia they can help to identify marks which may be identical or similar to yours you may need to amend your trademark if there is a confusingly similar one in the same category as yours after you determine whether you have a trademark that you want to protect and you have conducted a thorough search you can apply for registration in one or more classes that relate to the goods and services you provide there are two ways by completing a pre-filing assessment or completing a full application with a pre-filing assessment ip australia's trademark examiners will contact you within five working days of the application to advise whether your full trademark application has a good chance of being successful with a full application ip australia will contact you with a notice of acceptance or an examination report while the application is pending you can legally use the trademark symbol once you receive the certificate you can legally use the registered trademark symbol you'll need to renew your trademark every 10 years if you have any questions about registering a trademark get in touch with legalvision


Thanks Geraldo your participation is very much appreciated
- Billy Almstead


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