Is it better to have a registered trademark or an unregistered trademark in Australia? How much will your brand benefit from the added protection of trademark registration? Is it worth the time and money, or will having an unregistered trademark be sufficient? For the bold, entrepreneurial type endeavouring to create a new brand, trademark registration is one of the most important legal considerations you will have to face.

Australia’s system of trademark registration allows businesses around Australia to protect their unique brands from copycats and other infringing users. Before we discuss whether a registered or unregistered trademark is more suitable for your business, we should define what is a trademark. A trademark, according the Trade Marks Act 1995 (Cth), is a sign used to identify (or distinguish) products or services. A business’ brand is normally comprised of its trademarks and includes things like words, logos, colour, or symbols, to name just a few.

Trademarks exist whether you register them or not. This means that, upon creating a business, its name, logo or other unique identifier will be a trademark of your business provided you are using it as a trademark. Unregistered trademarks, unsurprisingly, will afford fewer rights and fewer protections over the mark(s) than you would have if you were the owner of a registered trademark. By failing to register your trademarks, you’re exposing your business to the risk of having your unregistered trademarks copied, used, and even registered.

What are the benefits of registered trademarks?

By registering your business’ trademarks, you exclusively benefit from certain rights. These rights include the right to use the trademark in connection with the goods or services for which they are registered, the right to let others use your trademark, and the right to be compensated if someone breaches your exclusive rights. The main reason why trademark registration is so attractive is that it dramatically reduces the likelihood of another business using your brand, or a mark that is confusingly similar, as its own. IP Australia, in assessing trademark applications, will reject an application of a mark that is identical or similar to another registered trademark. In making this assessment, trademark examiners will consider the classes under which it is registered.

Having said that, if you’re willing to risk it all and operate your business using unregistered trademarks, you should understand the kind of damage you could be doing to your business’ goodwill. It is not unheard of for competitors to search the register to check whether or not your trademarks are registered, and upon discovering that they are in fact unregistered; seize the opportunity to register them before you. Upon discovering that another identical or similar business is operating with your trademarks, you will probably want to stop this competitor from carrying on operating the business. But since your trademarks are unregistered, you will find it very difficult to do anything about the competitor, unless you’re willing to engage in lengthy legal proceedings. Despite your prior use of the trademark, the Courts will usually look more favourably upon the registered trademark against the unregistered trademark. This is not always the case, especially if you are able to show that through your prior use of the mark, your business has attained a reputation in connection with the trademark, and that the public would normally associate the trademark with your business.

Conclusion

If you are still not sure whether trademark registration is worth the time and money, speak with a trademark specialist about the risks involved in operating a business with unregistered trademarks. Our team of trademark lawyers will explain the pros and cons and help you make a decision.

Lachlan McKnight
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