What is the Trade Mark Symbol (™) and What Does it Mean?

In Short

• A trade mark identifies your brand and protects assets like names, logos, and slogans.

• You can register a trade mark with IP Australia for exclusive rights or rely on an unregistered mark if it’s recognised in the market.

• Use the ™ symbol for unregistered marks and the ® symbol for registered trade marks.

Tips for Businesses
Ensure you register your trade mark to gain stronger legal protection. Using the appropriate symbol (™ or ®) helps maintain brand integrity and prevent others from misusing your intellectual property. For international protection, consider registering your trade mark abroad.

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Table of Contents

• Trade Marks
• Using a Trade Mark
• Types of Trade Marks
• Benefits of Using a Trade Mark Symbol
• The Trade Mark Symbol ( ™)
• The Registered Trade Mark Symbol ( ®)
• The Difference Between the ™ and ® Symbols
• International Use of Symbols
• Key Takeaways
• Frequently Asked Questions

It is important to protect assets such as ideas, names, logos, or websites when developing a new brand. A trade mark symbol can help communicate to the public that these assets are your intellectual property. This article will outline how different types of trade marks can be represented by symbols and explore the benefits of using trade mark symbols.

Trade Marks

A trade mark is a sign that identifies your brand. Examples of trade marks include:

• names;
• images;
• slogans;
• colours; or
• scents.

Having a trade mark means you can prevent others from using the same or similar sign for alike goods or services. It can also be a great marketing tool and a valuable asset if you ever need to sell your business.

It is a common misconception that a trade mark is the same as a business name. Registering your business name with the Australian Securities and Investments Commission (ASIC) is not the same as registering a trade mark. For example, rather than referring to Nike Incorporated (business name), the general public will simply say the brand’s trademarked name, Nike.  You can only claim exclusive intellectual property (IP) rights to your business name if you use it as a trade mark. 

Using a Trade Mark

To use your business name as trade mark, you must use it as a badge of origin for the goods and services you provide. It is generally not enough to simply have your name registered as a business name with ASIC to accrue any trade mark rights in that name. You need to specifically use it in connection with your goods and services.

It is also essential to use your trade mark as a noun. If you use your name for explanatory purposes as a verb, such use is not likely to be recognised as functioning as a badge of origin. For example, you do not say “Kleenex your nose”; you use a Kleenex for your nose.

Types of Trade Marks

There are two types of trade marks:

1. registered trade marks; and
2. unregistered trade marks.

Registered Trade Marks

In Australia, registered trade marks are those that you register through IP Australia. The application process takes several months. Once registered, you have exclusive rights to use the trade mark for the goods and services under which it is registered.

Trade mark registration is not mandatory. However, it will provide you with more robust protection and help to avoid consumer confusion. If another business applies to register a trade mark that is identical or similar to your own, you will have enforcement rights to prevent them from achieving trade mark registration.

Unregistered Trade Marks

An unregistered mark is a mark that has developed a reputation in the industry that is recognised and distinguished from other brands. If your business can establish such a reputation, you can lawfully claim rights in that trade mark.

Benefits of Using a Trade Mark Symbol

Once you have a trade mark in useyou can convey this publicly by including it on anything related to your business. This may be your website, packaging, email signature or promotional material. You should also communicate your rights by using the appropriate symbol next to your mark.

Whether your business has trade marks domestically or internationally, it is important to consider displaying a ™ or ® symbol correctly to maximise brand protection and differentiate your brand from competitors. 

The Trade Mark Symbol ( ™)

The ™ symbol can indicate an unregistered trade mark or that you have a pending application for a trade mark registration. Anyone can use the ™ symbol. However, suppose you use the ™ symbol and someone challenges it. You may not be enforceable as you do not enjoy the same legal protections as someone with a registered trade mark.

Rights in an unregistered trade mark can be difficult to establish, especially if someone else has a similar registered trade mark and demands that you stop using yours. To protect and build your brand, invest time to register your trade mark with IP Australia. While waiting for the registration of your trademark, you should use the ™ symbol.

The Registered Trade Mark Symbol ( ®)

The ® symbol stands for registered. Therefore, you can only use this symbol for registered trade marks. Without a registration certificate from IP Australia, you cannot legally use the ® symbol. However, there is no legal requirement to use the registered trade mark symbol when operating your business. Importantly, you can only use the ® symbol alongside a trade mark that is exactly the same as the mark on your certificate of registration.

The Difference Between the ™ and ® Symbols

The ™ symbol indicates when a business intends to claim rights in a trade mark (either registered or unregistered). It is a precursor to the ® symbol. Your business can only use the ® symbol once you register your trade mark and receive a registration certificate from IP Australia.

International Use of Symbols

An Australian trade mark only offers protection domestically. If you have a registered trade mark only in Australia and use the ® symbol overseas, you may be at risk of legal action. To obtain protection overseas, you can either apply to foreign countries directly or apply via the Madrid Protocol.

Registering a trade mark abroad effectively protects your brand on an international scale. With international trade mark registration, you can expand your business overseas and prevent other businesses from misusing your brand.

Trade Mark Essentials

This guide explains the essentials of trade marks and the steps required to register a trade mark.

Download Now

Key Takeaways

Business owners should take steps to ensure appropriate IP protection, such as registering trade marks. Doing so maintains professionalism and deters competition from copying your brand. Therefore, you should be aware of which symbols are appropriate to pending/unregistered (™) or registered (®) trade marks. 

If you have any questions or need assistance with registering a trade mark, 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. 

Frequently Asked Questions

What is a trade mark?
A trade mark is a sign that identifies your brand, such as names, images, slogans, colours, or scents, and helps distinguish your goods or services from others.

What is the difference between a business name and a trade mark?
A business name registered with ASIC is not the same as a trade mark. A trade mark grants you exclusive intellectual property rights over your brand name when used with goods or services.