Do my unregistered trademarks protect me?
Trademarks don’t have to be registered, but they are harder to enforce than registered trademarks. By registering your trademark, it officially records when you registered, which can be invaluable if priority disputes occur.
You can simply include TM or ™ when you wish to claim trademark rights. This denotation can be used if your trademark is registered or not.
While rights can extend from an unregistered trademark (known as common law rights), it is generally harder to enforce than a trademark which is registered. The extent of evidence in establishing infringement of an unregistered trademark under common law is generally much higher than that of a registered trademark.
If you choose not to register trademarks now, then at some stage in the future you may be forced to prove “prior use” and/or “passing off” as per the Trade Practices Act 1974, and engage a trademark attorney to defend or protect your interests.
You can simply include TM or ™ when you wish to claim trademark rights, regardless of whether your trademark is registered or not. If your trademark is registered, then you may use the registration symbol ®. It is however vital that you:
- DO NOT use the registered ® symbol if your trademark application is pending
- DO NOT use the registered ® symbol if your trademark registration expires
(this can be important if your stock, packaging or promo material includes the symbol)
- DO NOT use the registered ® symbol for goods and/or services which aren’t listed in your trademark registration
- DO NOT use the registered ® symbol in a country in which you’re not registered (this might mean that you only use ™ on packaging, products or promotional material if sold or promoted in another country).
- BE WARY of trademarks in other countries. If you’re selling in another country then you might want to apply for the trademark there. You also need to ensure you’re not infringing someone else’s trademark (especially if you sell online).
First of all, you need something worth protecting. We can help you work-out if your existing business name, brand names, slogans or packaging are able to be trademarked, and are worth trademarking.
Similarly, we can design a trade mark for you, which is worth protecting.
If you require detailed trade mark, design registration, patent advice and/or legal advice, then we’ll be happy to refer you to patent attorneys & trademark lawyers. Let us know what you require, and we’ll refer you to a patent or trademark attorney that we know AND trust.
If you’re successful in obtaining the trade mark without adverse reports or objections, then it typically takes about 7 months in Australia.
In order to warrant protecting something, it needs to be valuable to start with. And you might already have something valuable and don’t know it. Or you might not be aware that it needs to be protected.
- If you’ve used a reputable designer and marketing firm, then you should have something worth protecting (phrases, company names, business name or graphics).
- Even your business name or product names might be worth protecting.
Are you starting a new business, launching a new brand, product or service?
Are you wanting to protect your existing business, brand, product or service?
Have you trademarked:
- your business or company name
- your product names
- your slogans or key phrases
- your key graphics
- specific smells or colours