An explanation of who can apply for a trade mark, how to register a trade mark, and what can be registered as a trade mark. An overview of the registration process, reasons why a application may be refused and preventing others to use your trade mark.
In this information sheet:An explanation of who can apply for a trade mark, how to register a trade mark, and what can be registered as a trade mark. An overview of the registration process, reasons why a application may be refused and preventing others to use your trade mark. Australian Consumer Law and creators.
- the records of the Australian Trade Marks Office for applications and registrations for identical and similar signs. The Trade Marks Office is part of IP Australia, an Australian government agency which is responsible for the management of the trade mark registration system and maintains a database of registered, pending, lapsed and refused trade marks which you can search online yourself at IP Australia's website. Alternatively, you can request IP Australia to provide an assessment of the registrability of your trade mark using its TM Headstart service. There is a fee for this service.
- the register of business and company names which can be accessed and searched on ASIC’s website.
- directories such as the White and Yellow Pages and any other databases available, including directories relating to your particular industry
- the internet using Google™ which may reveal business use of a name or brand in Australia which has not been registered as a trade mark or a business or company name.
- gives its owner a relatively easy and cost efficient legal action against infringers using the same or a similar trade mark in relation to goods and/or services which are the same as or similar to the goods or services for which the trade mark is registered;
- is property that can be easily bought, sold, mortgaged and licensed; and
- is on the public record and so third parties who search the register are more likely to be deterred from adopting it or a similar sign
- is a complete defence to any claim of trade mark infringement brought by another trade mark owner.
- distinctive and not merely descriptive, e.g. not "Indigenous Art Gallery"
- easy to say and spell (if a word or phrase)
- different from signs used by your competitors
- not defamatory or misleading, e.g. don’t call your band "The Rolling Stones" if you are not Mick Jagger
- not a geographical description or a common surname.
||includes audio and audio visual equipment, CDs, tapes, records|
||includes printed matter such as books, pictures and sheet music, photographs; stationery; artists' materials, instructional and teaching materials|
||includes textiles and textile goods|
||includes clothing, footwear, headgear|
||includes entertainment, educational and cultural services which would cover film production, exhibition, curatorial and gallery services and live performances.|
- the trade mark is not distinctive and is considered to be incapable of distinguishing your goods and/or services from the goods and/or services supplied by other traders (for example, the mark "pens and paper" for stationery might be refused because it comprises words which other traders would, in good faith, also wish to use to describe the nature, character and quality of their competing stationery products); and
- someone else has already registered or applied for a trade mark that is substantially identical or deceptively similar to your proposed trade mark.
- the infringing mark was used as a trade mark. That is, the infringing trade mark was being used to indicate a connection, in the course of trade, between certain goods or services and the (infringing) trader or service provider; and
- the infringing trade mark is identical, substantially identical or deceptively similar to your registered trade mark; and
- the goods or services (or both) in relation to which the infringing trade mark was used are the same or at least similar or closely related to the goods or services for which your trade mark is registered.
- Australian Copyright Council (ACC) has published information sheets:
- Australian Securities and Investments Commission (ASIC) National Names Index can be accessed through their website
- IP Australia telephone 1300 651 010 or their website