What is the TM Headstart and is it Necessary?

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Table of Contents

• What is a TM Headstart Assessment?
• TM Headstart Benefits
• TM Headstart vs. the Standard Trade Mark Application Process
• Key Takeaways
• Frequently Asked Questions

If you are looking to apply to register a trade mark through IP Australia, you may have noticed the option to request a ‘TM Headstart’ as a first step. This article will discuss what the TM Headstart is, its benefits and the process. It will also examine the difference between the TM Headstart and the standard trade mark application process.

What is a TM Headstart Assessment?

The TM Headstart assessment is often referred to as a ‘pre-application service’. Here, an IP Australia examiner will assess whether your trade mark is likely to meet the requirements for registration. The general time frame to receive a response from IP Australia is five business days from submitting the Headstart request.

Suppose the examiner believes there may be a potential barrier to registration. Accordingly, they will outline the issue in a brief report titled ‘Adverse TM Headstart Assessment’. Alternatively, if the examiner does not identify any likely issues with your application at this stage, you will receive a ‘Clear TM Headstart Assessment’. Regardless of the result of your Headstart assessment, you will have a further five business days to pay the part two fee and convert your Headstart request to a formal trade mark application.

If you receive an Adverse Headstart assessment, your options for proceeding are as follows:

• proceed with the trade mark application by paying the part two fee and converting your TM Headstart request to a formal trade mark application. You will then have 15 months to address the issues raised on your application in an attempt to overcome the objection;
• amend your trade mark and submit it for reassessment in an attempt to overcome the issues raised by the examiner, noting that additional fees will apply; or
• abandon the TM Headstart request.
  

TM Headstart Benefits

Some of the main benefits of the TM Headstart assessment include:

• an IP Australia examiner will provide you with a report as to whether your trade mark is likely to meet the requirements for registration, and if not, there will be a brief explanation as to why the examiner has taken that view;
• five business day turnaround time, as opposed to waiting months for your trade mark application to be formally examined via the standard trade mark application service;
• the opportunity to amend your application before filing;
• it is a private assessment, and will not be made publicly available on IP Australia’s database until you convert your Headstart request to a formal application;
• your trade mark application will generally be formally examined quicker (2-4 weeks) than the standard trade mark application process (4-5 months).

TM Headstart vs. the Standard Trade Mark Application Process

Where TM Headstart May Not Be Suitable

The TM Headstart is not always appropriate. Whether this process is suitable for you will depend on the type of trade mark you intend to apply for and your particular circumstances.

For example, the TM Headstart assessment is not available for certain trade marks such as: 

• series trade marks;
• certification trade marks;
• collective trade marks;
• defensive trade marks; or 
• divisional applications. 

Additionally, the TM Headstart may not be appropriate if you are looking to apply for a trade mark urgently. For example, to secure a priority (filing) date. In this case, the more suitable option would be to file a standard trade mark application to receive an immediate priority date.

Cost

The TM Headstart service is slightly more costly than the standard trade mark application. However, receiving the examiner’s preliminary thoughts on your application before filing may save you time and money later. Separately, if you abandon your application after the Headstart stage, the fees payable are $200 per class. This is in contrast to $330 per class.

Time Frame

*Please note that IP Australia’s response times may vary during busier periods.

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Key Takeaways

In summary, a TM Headstart assessment is can be beneficial to your business. It can allow an IP examiner to determine whether your trade mark is suitable for registration. However, it is essential you use this in the correct circumstances. For example, a TM Headstart may be unsuitable if you seek a priority date for trade mark registration.

If you need help preparing and filing your trade mark application, our experienced IP 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