Developing a new brand requires a lot of hard work. Once you have an idea, name, logo and website, it is important to protect those assets. But, how do you communicate to the public that they are protected? A trade mark symbol can help. This article outlines different types of trade marks and explores the benefits of using trade mark symbols.

Trade Marks

A trade mark is a sign that identifies your brand. It can be a name, an image, a slogan, a colour or even a scent. A trade mark allows you to prevent others from using the same or similar sign for the same or similar 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. No one refers to Nike using their business name, Nike Incorporated. It is their trade mark, Nike, that acts as an important identifier.

Your trade mark and business name can be the same. However, to claim exclusive intellectual property (IP) rights, you must use your sign as a trade mark.

Using a Trade Mark

To use your trade mark, you must use your sign as a badge of origin. It is not enough to have your name or logo on your website. You need to specifically use your sign in connection with your goods and services.

It is also essential to use your trade mark as a noun rather than an adjective. If you use your sign for descriptive purposes as an adjective, it is unlikely to be used as a badge of origin. For example, you don’t 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 under the Trade Marks Act 1995 (Cth). The application process may take several months. Once registered, you have exclusive rights to use the mark for the goods and services under which it is registered.

Unregistered Trade Marks

An unregistered mark is a mark that has developed such a reputation in the industry that it is recognised and distinguished from other brands. If such a reputation is established, under common law, you can claim similar rights as though it is a registered trade mark.

Communicating Your Rights Through a Trade Mark Symbol

Once you have a trade mark and are using it, how do you communicate this to the public? You can start by using your trade mark on anything related to your business. Use your trade mark on your website, your packaging, in your email signature and on any marketing or other promotional material. You should also communicate your rights by using the appropriate symbol next to your mark.

The Trade Mark Symbol: ™

The ™ symbol can indicate an unregistered trade mark or that you have a pending application for a registered trade mark. Anyone can use the ™ symbol. However, if you use the ™ symbol and someone challenges it, it may not be enforceable.

Rights of 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, you are better off registering your trade mark with IP Australia. While waiting for the registration of your trademark, you should use the trade mark 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. It is also important to note that you can only use the ® symbol alongside a trade mark that is exactly the same as the mark on your certificate.

Key Takeaways

There are two types of trade marks: registered and unregistered, Registering your trade mark is important as doing so allows you to best protect your brand. Communicating that you have a pending or registered trade mark by using the trade mark symbols (™ and ®) ensures you look professional and deters competitors from copying your brand.

If you have any questions or need assistance with registering a trade mark, get in touch with LegalVision’s trade mark lawyers on 1300 544 755 or fill out the form on this page.

Alexandra Shaw
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