How Do I Check My Trade Mark Idea is Not Taken?

Before you apply for a trade mark, you must conduct a thorough search for similar registered and unregistered trade marks. This will ensure that your idea is not already taken by another business. Checking whether someone else has already registered your trade mark is a crucial step in the trade mark registration process that can help you avoid legal action. This article will explain methods you can use to verify if your trade mark is not taken.  

Start With a Preliminary Search

The IP Australia Trade Mark Search database is a recommended starting point. It allows you to search for all Australian trade marks, including those that are pending, registered, or lapsed. When searching, you should also search for slight variations of the trade marks you plan to register, such as:

• plurals;
• common misspellings; and
• phonetically similar words. 

The database is not limited to word marks, and you can also search for logos by uploading an image. You should also explore the advanced search option, where you can include specific details about trade marks such as included phrases. This feature is particularly useful if you want to search for marks that are registered in a similar class of goods and services as your business.

Check Domain Names and Social Media Accounts

A good way to check if someone is using your trade mark is to check for associated domain names or social media accounts. Useful tools include domain registers such as NetRegistry, and popular social media platforms like Facebook, Instagram, LinkedIn or Pinterest. 

To effectively search, consider looking into any other platforms relevant to your business or industry. Similar to searching on IP Australia, ensure you search both for the exact trade mark term and variations of it.

Consider International Trade Marks

If you plan to use your trade mark internationally, you need to search for trade marks in each country where you intend to operate. Importantly, you should start with a base application in the country where your business is headquartered. This provides you initial protection and establishes your rights in that location. 

You can then proceed with seeking international protection. You might do so via the Madrid Protocol, which is an international treaty. It simplifies the process of registering trade marks in multiple countries. International applications under this system are through a portal administered by the World Intellectual Property Organization (WIPO). 

Consider Unregistered Trade Marks

Since the IP Australia database does not include unregistered trade marks, you need to do additional research in most circumstances. You should conduct a basic search on the internet to see whether someone else is using your word marks or variations of it within your particular industry.

Aside from ensuring that your trade mark is not infringing on the rights of another business, these searches are essential to ensure you do not breach Australian consumer laws. The law protects consumers from the misleading or deceptive conduct of sellers. If you use a similar trade mark to another business for alike goods and services, you may be liable for misleading and deceptive conduct.

Key Takeaways

As a business owner, you should carefully search for existing trade marks before applying. This secures protection for your brand and helps you avoid legal action for trade mark infringement. A quality search will consult:

• the IP Australia Australian Trade Mark Search;
• social media and domain registers;
• international databases if you plan to operate overseas; and
• the internet for unregistered trade marks. 

After conducting a comprehensive search and feeling confident that your proposed mark is exclusive and available in Australia, you can proceed with the registration process through IP Australia. 

If you would like assistance regarding trade mark applications, contact our experienced trade mark lawyers 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.