Trademarks, copyright and patents fall under ‘intellectual property’ and are a major area of commercial law. Intellectual property law provides creators with rights and protections for distributing their work, ensuring that they can receive financial gains for their hard work.

What is a Trade Mark?

In Australia, a trade mark is defined as a ‘right’ granted over a word, phrase, letter, shape, logo, picture, or packaging that your business uses specifically to represent its products and services.

In short, a trade mark is used to distinguish your goods or services from your competitors.

Common examples of trade marks are the names of your products, logos and packaging unique to your brand, the name of your business, and, in certain circumstances, promotional slogans.

Does a Trade Mark Need to be Registered?

It might surprise you to know that a trade mark does not, strictly speaking, need to be registered. Simply using a specific word, phrase, logo or the like in connection with your business can be considered using it as a trade mark.

However, there is an important legal distinction between a ‘trade mark’ and a ‘registered trade mark’. While establishing and using a trade mark without registering it may support a claim over use of the mark, it is by no means a guarantee.

Registering a trade mark verifies that it is valid and perhaps most importantly, that it does not infringe on other trade marks. It ensures that you have the exclusive right to use that trade mark in connection with your goods and services.

So while both registered and unregistered trade marks are technically eligible for legal protection, establishing the validity and right of ownership with a registered trade mark is significantly easier and more secure option.

Does Copyright Need to be Registered?

Copyright is original works of authorship, such as literary, dramatic, musical, and artistic works, like novels, blogs, movies, music, or computer software.  In a very simplified sense, trade marks are more like ‘names’ while copyright is more like the ‘content’ itself.

Unlike trade marks, there is no process for registering copyright in Australia. Any copyright material created is automatically granted right of ownership and legal protection.

While this is convenient, it can also be problematic when disputes arise. It is always important to keep thorough records of any copyright created and related evidence of the development of the copyright. For high-value copyright, it is advisable to seek legal advice on how to best protect it.

Is My Business Name Automatically Trade Marked?

No – registering and using a business name does not automatically register it as a trade mark.

Furthermore, if you register a business, company or domain name, you do not automatically have the right to use that name as a trade mark. If competing businesses have already registered similar brands or trade marks, they may take action against you for infringing on their rights.

Do I Need a Trade Mark Attorney?

Trade marks are registered through IP Australia, which is the sole body responsible for trade mark and patent registrations Australia-wide. While it is possible to apply to register a trade mark without a lawyer, getting a mark past IP Australia’s examination can be difficult.

An IP Australia examiner will review the application against a strict set of rules to ensure the trade mark is valid and distinguishable, criteria which are commonly misunderstood by business owners.

Generally, IP Australia will err on the side of caution and reject an application unless you can provide arguments and evidence that demonstrate the distinctiveness of your trade mark.

Furthermore, when applying, a competitor (or its lawyers) will monitor applications and may raise an ‘opposition’ to your trade mark application. This requires you to argue and prove your mark does not infringe on theirs. If you fail to argue successfully, your application will be rejected.

The Robert Woods and Associates team can help you research your proposed trade marks to get them past IP Australia’s requirements. This will minimise potentially expensive conflicts and litigation with existing trademark rights. We can also assist you in dealing with infringements. To learn more, simply give us a call on (03) 9762 3877 or contact us online.