A trade mark refers to a sign that is used to protect a business from its competitors. It commonly takes the form of a business name, a product name, a slogan or a logo. Trade marks can distinguish a business from its competitors and can build value over time due to the reputation it may establish in the market. The brand identity that may arise from your use of the trade mark is a valuable asset that needs to be protected. This article will run through the differences between a registered and unregistered trade mark.

Unregistered Trade Mark

As mentioned above, a trade mark refers to distinguishing signs that are used by businesses or individuals in the offer of their goods and services. A trade mark exists even if it is not officially registered. An unregistered trade mark often uses the “™” sign to show competitors, as well as consumers, that they are the owners of this trade mark and have certain rights to its use.

Registered Trade Mark

A registered trade mark refers to signs that have received approval as a trade mark from Intellectual Property (IP) Australia, the administering body who executes the Trade Marks Act 1995 (Cth). Applicants that are successful often use the ® sign as a way to demonstrate ownership of their trade mark.

Statutory or Common Law Protection

One of the main differences between an unregistered and a registered trade mark comes down to the source of protection. An unregistered trade mark’s source is the common law, which refers to case-based law.  A registered application, on the other hand, derives protection from a statute, specifically the Trade Marks Act 1995 (Cth). This is a national statute that protects the use of a trade mark throughout Australia.

Enforcing an Unregistered Trade Mark

An unregistered trade mark has limitations in the level of protection it can provide to its owner. For an unregistered trade mark, any right to ownership of the trade mark needs to be proven. It is easier to confirm your enforceable rights to exclusively use a registered trade mark. This is because your rights immediately arise once it is registered.

According to the common law, a substantial level of evidence will be needed to demonstrate an unregistered trade mark’s use. The owner of an unregistered trade mark often needs to prove that a reputation has been established, and their level of protection will only correspond to the area where they have established that reputation. A registered trade mark, on the other hand, provides protection Australia-wide.

Conclusion

If your trade mark is an essential aspect of your business, speak to one of our specialist LegalVision trade mark lawyers to help protect your business from your competitors!

Kristine Biason
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