What is a Trademark?

A trademark is any sign that you use to distinguish your products and/or services from those of other people. A ‘sign’ could be a name, slogan, logo, image, colour, shape, scent or even a sound (or a combination of these things). Most often though, trademarks are names or logos.

A trademark can exist whether you choose to register it or not. A business name can be a trademark if it is capable of distinguishing your products or services from those of other people, as is a brand name or corporate logo. Registering these things as your trademarks ensures you are recognised as the owner, and protects your use and promotion of these things for the particular goods or services your business deals in.

Why would I need one?

Without a registered trademark you are vulnerable to infringing existing rights, or, being powerless from stopping others using the same, or similar names and logos.

Registering a trademark provides the owner with several rights that they won’t have otherwise:

  1. The right to use the name or logo, in connection with the goods or services nominated; a business name, company name or similar does not provide this right. Registration of a business/company name could inadvertently infringe the existing rights of a trademark holder. At the very least, trademark searches should be carried out;
  2. The right to authorise the use of the name or logo in connection with the goods or services. This would be required if you wish to franchise your business, or generally license the use of your name/logo to someone else. You should not be providing someone else with permission to use your name/logo without trademark registration safely secured, or, you could be giving them permission to infringe someone else’s rights!
  3. The right to instigate action against people found to be infringing your rights. Without trademark registration in place, you are quite limited in action available to stop people from copying your names or logos – or from using names/logos very similar to your own. Having the trademark registered will give you the legal legs to stand on in preventing such confusing activity from occurring.

How do I register a trademark?

All trademark registrations are done through www.ipaustralia.gov.au. Trademarks are assigned to classes, with a government fee being charged per class registered. There are currently 45 classes, which are a mix of goods and services, and the same trademark may be awarded to different businesses for different classes

Applications can be done directly with the government so the question becomes whether to do it yourself or get someone to do it for you.

Doing it yourself

The obvious advantage is potentially saving some money, however your chances of success are lower and you may need to do a bit of work.

Firstly you will need to satisfy yourself that the trademark is available and choose the classes that you will register for. It is wise to first submit a TM Headstart application which provides an assessment of your proposed trademark before you officially apply. If the examiner raises any issues you will need to respond to the issues yourself. Once satisfied you then pay the registration fees for each class approved.

The hard part is assessing whether you will actually be able to register your trademark and responding to any issues raised by the examiner. Even if you use the TM Headstart service you won't find out all the issues that can be raised by the examiner. If objections are raised, and that is likely, you may need to go through multiple responses with the examiner, over a period of months, and still not get the trademark registered.

Using a Trademark registration service

A good trademarking service will provide the following services:

In the end you need to weigh up any potential savings you may get attempting to register yourself against the reliability and speed a trademark service can provide.

Need more information?

Parts of this page were reproduced with the permission of LegalVision. They provide a high quality trademarking service on a fixed fee basis. They can provide you with advice and assistance with your queries. If you are a client of eCompanies you also get a 5% discount off their filing fees if you end up registering.

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