Mark your territory! What you need to know about trademarking


Most people recognise a trademark wherever they look. But what really is a trademark and why is it important?

First, a trademark is ‘a sign used or intended to be used, to distinguish goods or services dealt with or provided in the course of trade by a person from goods or services so dealt with or provided by any other person’.

But what is a sign? A sign is ‘any letter, word, name, signature, numeral, device, brand, heading, label, ticket, aspect of packaging, shape, colour, sound or scent’. Although it may seem like you can trademark nearly anything, there are some restrictions. For a trademark to be approved, it must be used in the course of trade and business activity and fall within a classification of goods and services.

Who is eligible to register a trademark? Any individual, company or incorporated association who is the owner of the mark is eligible to make an application. A successful registration allows the owner to trademark their goods and services for at least 10 years and this can be renewed for a further 10 years so long as the trademark is still active.

A trademark can be created and used to promote your goods and services without it being registered. The main disadvantage to this is it leaves you with having no registered intellectual property protection and no statutory protection. For example, owners of unregistered trademarks have no certificate of ownership, therefore, difficulty arises when taking legal action against someone who is using the same or similar trademark. An unregistered trademark can be protected by common law (case law) however this limits the level of protection that an owner can seek.

If you are an individual or business who has a distinct sign that you intend to use long term and have gained a reputation, it is highly recommended that you consider registering a trademark.

Put simply, branding is powerful. As a business owner, you strive to distinguish your business from its competitors. Having a registered trademark gives you the exclusive legal right to use, licence and sell your intellectual property asset in Australia whilst also providing you with a tool to build the value and reputation of your business. Ultimately, your trademark becomes the identity of your business.

If you are seeking advice about registering a trademark for use in Australia or elsewhere, or are contemplating taking action against another who you believe is infringing your trademark, please contact our office and make an appointment with one of our experienced practitioners today.


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