Why and How to Trademark

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A trader uses a trade mark to differentiate the goods and services from those of another trader.

A right which is granted for a letter, number, word, phrase, sound, smell, shape, logo, picture and/or aspects of packaging is known as a trade mark.

A registered trade mark is legally enforceable, and gives you the exclusive rights to commercially use, licence or sell it for the goods and services, that it is registered under.

Why Do You Need a Trade Mark?

Registering a business or product name or logo as a trade mark provides a simple long term protection of a potentially valuable asset.

In Australia, registration of a trade mark gives you the exclusive right to use the mark for nominated goods or services pursuant to the Trade Marks Act 1995.

Once your trade mark is registered, you will receive a Certificate of Registration, and the same will be recorded in the Trade Marks Register (Register), maintained by IP Australia for the usage of your trade mark for an indefinite period. The trade mark is subject to use on payment of the renewal fees in every 10 years. Registered trade mark provides a mechanism to protect your rights against infringement. If the infringement is proved, the Court may grant the owner, an injunction to restrain the infringing activity or award damages.

In case you are not able to pay the renewal fees, the registration of such trade mark lapses and gets removed from the Register.

How to Apply for a Trade Mark?

First you need to decide whether registering a trade mark is appropriate for your brand or not, where you want to register and also have a clear idea about the application process.

Before applying for a trade mark, you need to consider the following factors including:

  • Whether you are eligible to apply for a trade mark;
  • What are the benefits of a trade mark and what can be trademarked;
  • What is the application procedure;
  • Search in the trade mark database Australian Trade Mark On-line Search System (ATMOSS);
  • Determine the suitability of your proposed trade mark;
  • How to renew your trade mark; and
  • What to do if someone raises an objection with regard to your trade mark application or objects to your trade mark from being registered.

While registering a trade mark, first and foremost you should take due care in correctly completing your application as this will assist you to process and obtain your trade mark as quickly as possible.

You can apply for your trade mark online by through eServices by:

  • Filing your Standard Application; and
  • Applying, using the TM Headstart service, which can provide an assessment of the suitability of your proposed trade mark before you officially apply.

Once you have chosen an appropriate trade mark, you must submit your application, and go through an examination process, before your trade mark gets registered.

Your application for trade mark must include:

  • Your name and contact details;
  • A representation of the trade mark;
  • Nomination of the relevant classes;
  • A description of the goods and/or services to which it will apply;
  • Any translation of a part of your mark that is in foreign language; and
  • The proper requisite fee.

If you are considering registering a trade mark, you can contact our team of Sydney-based intellectual property lawyers to assist you in any trade mark related matter.

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Why and How to Trademark

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