Trademark Law & Lawyers

Trademark registration, infringement, and brand protection.

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Australian trade mark law is based on the Trade Marks Act 1995 (Cth), which is administered by IP Australia, an Australian government agency within the Department of Industry, Tourism and Resources.

If you would like legal help in relation to any aspect involving trademarks, then please complete your free legal enquiry form on the right, or click here.

A trade mark is a way of identifying a unique product or service and it can be your most valuable marketing tool. Sometimes called a brand, your trade mark is your identity - the way you show your customers who you are. There is a difference between trade marks, business, company and domain names.

A trade mark can be a letter, number, word, phrase, sound, smell, shape, logo, picture, aspect of packaging or any combination of these.

The Trade Marks Act

The Trade Marks Act defines trade marks (including certification marks and collective marks), what constitutes trademark infringement and defences and exceptions thereto, and (together with the Trade Marks Regulations) sets out procedures for registration and other proceedings before the Registrar of Trade Marks. The legislation does not codify the law of trade marks in Australia; as a common law jurisdiction, a trade mark owner may also (for example) seek to protect its rights through legal proceedings for passing off.

Registering a Trademark

The procedure to register a trade mark in Australia is much the same as other countries. A completed application is filed with IP Australia (either by delivery to one of its regional offices or electronically) and checked ("examined") by an examiner of trade marks for compliance with formalities and substantive requirements (e.g. registrability, and lack of confusing similarity with a conflicting trade mark). If an application is accepted it will be published for opposition purposes for three months, during which time third parties may oppose registration on certain grounds. If there are no oppositions, or any oppositions are overcome, a certificate of registration will issue.

If you would like legal help preparing and completing an application for a trademark, then please complete your free legal enquiry form on the right, or click here.

Some important things to note about trademarks are as follows:

A trade mark can have an infinite life representing significant business value.
Initial registration of a trade mark is for 10 years.
You can continue to renew it for successive periods of 10 years by paying a fee.
You must actively use your mark to avoid removal on the grounds of non-use.

Benefits of trade marks

A trade mark can be your most valuable marketing tool. The public identifies a certain quality, reputation and image with goods and services bearing a trade mark. The more successful your business is the more valuable the trade mark becomes.

If you are thinking about a new product or service and you want to establish an image for it, you should consider a distinctive trade mark under which to market it.

If you would like legal help in relation to any aspect involving trademarks, then please complete your free legal enquiry form on the right, or click here.

As the owner of a registered trade mark you:

have the exclusive right to use your registered trade mark as a brand name for the -goods or services specified in the registration
have the exclusive right to authorise other people to use your registered trade -mark for the goods or services specified in the registration
have a registered trade mark, which is personal property and can be sold
have a registration, which usually covers the whole of the Commonwealth of Australia
may give the Australian Customs Service a notice objecting to the importation of -goods that infringe your registered trade mark
can be in a stronger position to stop other people from using your trade mark as -their brand name on the same or similar goods or services of your trade mark registration.

If you would like professional help regarding preparation of your trade Mark application, please complete your free legal enquiry form on the right, or click here.

Opposing a trademark

Reasons for opposing a trade mark application that has been advertised as accepted
An opposition to registration of a trade mark may be opposed on the basis of any of the grounds of rejection set out in Division 2 of Part 4 of the Trade Marks Act 1995 (except for section 40) and also on the basis of sections 58 to 62A.

The most common reasons for trademark opposition include:

the trade mark is identical or very similar to another registered or pending trade mark (section 44) or an international registration that is seeking or has gained -protection in Australia (regulation 4.15A)
deception or confusion is likely because of the reputation of another trade mark in Australia (section 60)
the trade mark applicant is not the true owner of the trade mark (section 58).
Reasons for opposing a removal application
Removal applications are usually based on one of the following claims:
that the owner of a trade mark has not used the trade mark
that the owner of a trade mark has not used it in good faith or
that the owner did not ever have any intention to use the trade mark.

If a person wants the trade mark to stay registered, they can contest the claim by opposing the removal application. Generally, these oppositions are based on claims that the trade mark has been properly used within the relevant time period set by the Act.

If you have a legal matter involving a trademark and would like to consider taking legal action, then please complete your free legal enquiry form on the right, or click here.

Protecting your trade mark

Once you have successfully registered your trade mark, it is your responsibility to protect it from infringement or removal.

Trademark Infringement

If someone uses your trade mark without your permission, they may be infringing your trade mark rights. Should you wish to seek legal representation in relation to an infringement of your trademark, then please complete your free legal enquiry form on the right, or click here.

Court action and trademark disputes

Another person can apply directly to a court for a court order to remove or cancel your trade mark registration. It is your responsibility to defend and protect your trade mark.

Should you require legal help regarding a trademark dispute, please complete your free legal enquiry form on the right, or click here.

Links to Further Resources - Trademark Law & Lawyers

This page contains a list of useful Trademark Law links containing legal information in relation to various topics and issues pertaining to Trademark Law. To seek legal help regarding Trademark Law, please complete your free legal enquiry form on the right.