Is my Trade Mark Available? Your ATMOSS Guide

The Australian Trade Marks Online Search System (ATMOSS) is the gateway to discovering whether another business has already snapped up your brand name. Seemingly designed by the same people who dreamed up Netscape Navigator, it can be cumbersome and unwieldy. We’ve set out a quick guide stepping you through how to use the search function.

Why Register a Trade Mark?

If you want to stop your competitors using and commercially exploiting your brand name, you will need to register a trade mark. Importantly, remember that it’s insufficient only to register your business name – this doesn’t give you any exclsuive rights whereas a trade mark does.

The Trade Marks Act 1995 (Cth) sets out the rules for registering your trade mark. Your name cannot conflict with another trade mark on the register. That is, if you want to register a trade mark which is sufficiently similar to another so that a consumer would struggle to distinguish between the two, then IP Australia won’t register yours.

1. Familiarise Yourself With the ATMOSS Search Page

You can find the ATMOSS tool here. Enter the site by clicking through as a  ‘guest’ and you land yourself on the ATMOSS basic search page. There are fields to fill out for word/image, class/es, trade mark status and trade mark number range. When searching for your name, you will mainly use the fields for word/image and classes.

Tip: Searching for a trade mark is not as simple as searching for a registered trade mark that is identical to yours. The crux of registering a trade mark is that if a name is similar enough to confuse customers or make it difficult for them to distinguish between two businesses, it won’t be registered. That means you can’t just search for an identical name. You may have to conduct several searches to determine whether there is a name that might either:

1. Sound similar to yours;
2. Look similar to your logo; or 
3. Use other characters to create the same word which might mean your name is too similar to another and therefore won’t be accepted.

2. A Class Act

Your second step is to pick the right class for your name. There are 45 different trade mark categories or ‘classes’ to choose from – gyms and fitness to selling natural food products to electrical equipment. Classes 1-34 are goods and classes 34-35 are services. You can browse the classes by using IP Australia’s handy search engine tool.

For example, if you want to trade mark the name for your gym, you would need to pick a class relating to gyms/fitness and possibly also a class for the sale of clothing (if you also sell branded clothing). You should choose classes that relate to your main activity, otherwise costs very quickly increase.

3. Status Anxiety

Having your coveted business name pop up on ATMOSS is not pleasant. However, all is not lost! Using the drop down menu on the ATMOSS basic search page, you can choose to show only trade marks which have their status as ‘pending’, ‘registered’ or ‘renewal possible’. Trade marks which have a status of ‘pending’, ‘registered’ or ‘renewal possible’ are potential barriers to the registration of your trade mark. On the other hand, trade marks with the status ‘refused’, ‘removed’, ‘never registered’ or ‘lapsed’ are not likely to present a barrier to registration.

Key Takeaways

ATMOSS is your first point of reference if you want to determine whether you can trade mark your business name. Registering your trade mark will provide you with a statutory, enforceable right to use a name exclusively, whereas registering a business name does not. You won’t be able to trade mark a name if another business has already done so. ATMOSS then allows you to confirm whether your name is available before applying to IP Australia for registration. If you have any questions about what steps you should take to protect your business name or register a trademark, get in touch with our IP lawyers on 1300 544 755.