In Short
- Using the ® symbol is only allowed if your trade mark is officially registered in Australia.
- The ™ symbol can be used for unregistered trade marks to indicate brand ownership.
- While using ® is not legally required, it helps deter infringement and reinforces your brand’s legal protection.
Tips for Businesses
If your trade mark is registered, displaying the ® symbol signals legal protection and discourages misuse. Avoid using ® if your trade mark is not registered, as this is an offence in Australia. Using ™ is a safe way to indicate brand ownership before formal registration.
Whether you have an established trade mark that you have been using for years or whether you are currently in the process of establishing your brand before launching your business, a valuable question to consider is whether or not you should use a symbol in connection with your trade mark. The two symbols commonly used to identify trade marks are:
- the ™ symbol; and
- the ® symbol.
This article outlines:
- what the trade mark symbols represent;
- what symbol is correct or most appropriate for you to use; and
- how to use each symbol correctly.
What Does Each Symbol Represent?
The ™ symbol indicates that a business considers a particular mark to be a trade mark of their business or intends to claim a trade mark. Anyone may use this symbol at any point. Trade mark registration is not necessary for you to use the ™ symbol. If you have yet to register your trade mark or file the relevant paperwork, you can use this symbol to put competitors and consumers on notice. This symbol can also be representative of the intention to register a trade mark. You can use it while IP Australia is processing your trade mark or if you have a pending application on foot.
Regardless, you can still use it even if you have never registered your trade mark. The ™ symbol essentially puts others ‘on notice’ that you consider whatever name, logo, slogan or other mark you have used to be your trade mark.
The ™ symbol is frequently a precursor to using the ® symbol.
Why Use These Symbols?
Ultimately, the use of either of these symbols is not required, whether your trade mark is registered or unregistered, and the decision of whether to use these symbols comes down to your preference.
The use of the ™ or ® symbol is not necessary to consolidate your trade mark, but you can use it to indicate to others to respect your intellectual property. Marketers may find that the symbol takes away from the aesthetic of the trade mark, whether this is on the packaging or advertising material. However, some advantages come with the use of a trade mark symbol. This can serve as an important notification to potential infringers that your trade mark is registered, or even if it is unregistered, that you are prepared to enforce your trade mark rights.
In the event of a trade mark dispute, it can be important to show that you have publicly displayed the ® symbol next to your trade mark, putting your competition on notice of your registration rights. Often, damages for trade mark infringement are calculated from the date notice is given.
Using an ® can communicate to a potential infringer to tread with caution.
This fact sheet explains what to look for and how to protect your business from trade mark scams.
How to Use ™ and ® Symbols Correctly
If you choose to display a symbol, it is important to use the correct symbol. When using your trade mark, whether a ™ or ®, place it prominently on your mark name or logo. It is typically on the upper right-hand side of the name, word or logo. It is important to display the symbol next to your trade mark for each use to ensure your competitors see it.
To avoid these consequences, you should wait until you receive confirmation of your trade mark’s registration before adding the ® symbol to your branding materials. In the meantime, you can use the ™ symbol to indicate your claim to the mark without implying registration. Once you secure your registration, you can display the ® symbol to show that your trade mark has registered rights.
International Use of the ® Symbol
If you have successfully achieved trade mark registration in Australia and have begun using the ® symbol in connection with your trade mark, you must proceed with caution if you begin to expand internationally. It is important to know that an Australian trade mark registration is only valid in Australia. If you wish to use the ® symbol and trade internationally, you should consider applying for international trade mark protection in the countries relevant to you.
Perhaps you export goods overseas that display your domestic packaging. In this case, you may be misusing your trade mark. Incorrect packaging, even without intent, can result in fines or competition claims for deceptive conduct by competitors.
False marketing claims are very serious in certain countries such as China, Germany, India and Japan. Mark owners must ensure that they market any international trading appropriately. As a business looking to distribute internationally, you will need to think about registering your domestic trade mark in the new country you plan on expanding into. This legal risk challenges companies with new products and multiple brands that can be exposed internationally.
Key Takeaways
Businesses commonly use the ™ and ® symbols with their trade marks. Anyone can use ™ at any time, even for unregistered trade marks, to indicate an intention to claim trade mark rights. However, you can only use ® after registering the trade mark, and only in countries where you must hold an active registration. While the use of ™ or ® symbols is entirely optional, advantages exist in the form of putting others ‘on notice’ that you intend to claim trade mark rights, which can deter any potential infringement on your trade mark.
If you need to trade mark your brand, our experienced intellectual property lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.
Frequently Asked Questions
A business uses the ™ symbol to indicate its intention to claim a trade mark. You can use the ® symbol only after IP Australia grants your trade mark and issues a registration certificate.
You do not need to use the ™ or ® symbol to consolidate your trade mark, but it can signal that others must respect your IP. These symbols notify competitors and consumers that you have a trade mark, serving as a clear warning to potential infringers.
We appreciate your feedback – your submission has been successfully received.
