How to apply for a trademark

Written by Barry Meskin on 31 January 2023

Whether you are new to business or have been operating for some time, you’ll undoubtedly have a logo or design in place that is recognised as belonging to you. The value of this logo or design and your associated reputation cannot be understated. So how do you protect yourself from infringers who would seek to profit from your hard work by using it as their own? 

By registering it as a protected trademark

If you have yet to pursue or have never looked into how to apply for a registered trademark, we’re here to explain the process. Take steps to protect your business and reputation by following this easy-to-understand guide. 

What Is a Trademark?

A trademark is a form of intellectual property that can be used to protect a business's logo, sign, design or phrase. Trademarks help a customer to better recognise your business and what you offer while also protecting you from infringements. 

Consider British confectioners Cadbury as an example. Not only do we instantly recognise the font utilised in the spelling of the brand name, but the iconic purple packaging - both of which are trademarked by Cadbury. The combination of these things and their associated reputation means customers can quickly find their products and purchase them. 

As a business owner, your trademark serves the same purpose and can help you become established as a trusted operator in your chosen niche. Additionally, should someone try to deceive customers by operating under your trademark or one that is substantially similar, you are better protected under the law and better positioned to put a stop to it. 

Can I Operate Without A Trademark?

In Australia, you do not legally have to apply for a trademark. You may choose  to use your chosen logo or design and are still afforded some level of protection under the law in some instances. Without registering your trademark there is no guarantee you can continue to use your chosen brand as other parties may already own existing trademarks that could prevent you from using yours. 

However, opting not to register your trademark can leave you in a somewhat precarious position when it comes to dealing with copycats or infringing behaviour. Proving that someone is unlawfully using your name, logo or design for their own gain can be more time-consuming and therefore more costly if there is no trademark in place. 

A registered trademark gives you optimal protection and the best position from which to both deter and fight back against infringers. You can learn more about registered vs unregistered trademarks here

What Can I Trademark? 

Before pursuing a trademark, you’ll need to first determine that you can in fact trademark the item in question. A business can have more than one trademark in place to protect different aspects of its image. 

Trademarks can take many forms, including but not limited to: 

  • A single word
  • A phrase
  • A logo
  • A picture or image
  • A fragrance
  • A song, sound or jingle
  • A number and more 

You cannot trademark certain types of intellectual property such as inventions or processes. These can be protected by patents instead. Likewise, creative content including musical scores, books, movie scripts, books or similar cannot be trademarked as these are protected by Copyright laws. 

How To Apply For A Trademark In Australia

In Australia, the process of how to apply for a trademark name is quite straightforward if you have the time to research and complete the necessary paperwork. The governing body for Intellectual Property in Australia has a wealth of information and tools available via their website that can help you understand and navigate the process. 

Keep in mind, your trademark is only valid for protection in Australia. While it is possible to pursue international trademark registration, this process is much more involved. 

Steps For Registering A Trademark 

1, Check Your Eligibility

To register a trademark in Australia, you must either reside or have an agent that operates on your behalf residing in Australia. You will also need to demonstrate that you intend to use the trademark for the sale of goods or services outlined in your application.

2. Check For Uniqueness 

When it comes to how to apply for a registered trademark, one of the most important steps is to ensure that your proposed trademark is not ‘substantially identical’ or ‘deceptively similar’ to an existing trademark. 

Failure to check could see your trademark application rejected on these grounds as it will be viewed as an attempt to possibly deceive or confuse the public. Performing this search is best done via IP Australia’s search tool.  

In this step, you should also be mindful of the type of trademark you are applying for and the class of goods and/or services it falls under. This will ensure you are searching in the right field for possible similarities with existing trademarks.

Watchpoint 

Trademarks may also be rejected for reasons other than similarities with existing trademarks. Be mindful not to use imagery, phrases or wording that could be deemed offensive or abusive. 

1. Choose Your Preferred Application Service

IP Australia offers two pathways for registration, each with its unique offerings. One offers the chance to have your application reviewed by an examiner before final submission and the chance to modify it as needed. This is recommended for those unfamiliar with trademark registration. 

The other is a straight application with no revisions available and suited to those who have been through the process before. The fees associated with each vary, the former being more expensive. 

2. Prepare Your Documentation

With your submission, you will need to show ownership of the business associated with the trademark application alongside a representation of your trademark (e.g. recording, image, printed phrase).

You will also need to list the goods and services you want the trademark applied to and their related class numbers (all available on IP Australia's website) and your payment information for settlement of all fees. 

3. File Your Application

Applications can be easily lodged online and saved as you go. Once you create an account with IP Australia, simply navigate to the trademark application page and start the process. 

4. Await The Decision 

A decision on whether your application has been approved or denied can take up to four months. No matter the outcome, you will be alerted via your online account with IP Australia. If successful, your trademark is then published in the Australian Official Journal of Trade Marks and the Australian Trade Mark Search. During this time, anyone who wishes to oppose your trademark can do so. If there is no opposition or you are successful with  defending any opposition, your trademark will be registered and your application a success. 

Your trademark is now protected for ten years, subject to you using it correctly. You can renew your registration as needed in ten years. 

Where To Find Help 

Feeling lost about where to begin or having trouble with the application process? At IP Guardian, our patent and trademark attorneys have decades of experience managing even the most complex trademark registrations. 

Whether you need one or several trademarks registered, we can handle it all with ease. 

We are passionate about supporting Australian business owners to protect their reputations, achieve greater success and avoid the pitfalls of infringing behaviour. We offer affordable service from highly qualified attorneys with zero compromises.

If required, our convenient payment options “Protect Now Pay Later" or "Buy Now Pay Later" (BNPL) mean you can protect your business now and pay over time. 

Avoid navigating legal jargon and complicated online systems, contact IP Guardian today at 02 9071 0130 to book your obligation-free consultation.

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