Before You Apply to Register Your Trademark
Before you apply for your trademark, you should take some time to familiarise yourself with the general trademark registration process, and to also understand what types of trademarks are likely to be accepted by the examining government body. Our website provides you with a good starting point in this regard, but we will, of course, work with you to ensure we get the best possible outcome for your brand or name.
We are proud to advertise our success rate of 91% in having our clients’ trademarks accepted.
What is a trademark?
A trademark is something, usually a name, logo or both, that is used to indicate the origin of the products (goods) or services that you offer. Or put another way, it is your brand that is serving to set your goods or services apart from other traders.
For more information see our page on What Is A Trademark?
What types of trademarks are registerable?
Trademark applications are submitted to IP Australia (or USPTO in the US or IPONZ in NZ) who examine the mark for registrability. To be registered, a trademark generally cannot be:
- descriptive or laudatory of your goods and/or services; or
- too similar to another trademark on the Register; or
- a common surname; or
- a geographical place name (if that place has significance for the particular goods and/or services).
However, there are exceptions to these rules, particularly if the trademark has been used for some time and acquired a reputation.
Need some advice on this?
If you need some more advice in your particular case, we offer a free initial consultation.
Who can own a trademark?
A person or a company may own a trademark. A business name is not a legal entity and so cannot own a trademark (in that case, the person or company who owns the business name should own the trademark).
Assignment of a trademark is relatively straightforward, and so if you have yet to set up your company, you can own the trademark personally at the outset and then transfer ownership at a later date.
What happens if I don’t get a trademark?
This is a great question. Having an officially registered trademark for your business is not actually a legal requirement. As long as you are otherwise obeying the legal obligations of running your business, the government will not require you to get a trademark.
However, if you do not have a registered trademark, you do not have good legal rights to your name or brand. You may not even own your name or your brand. Therefore, it is advisable to get your name protected with a trademark.
See our Blog post What Happens If I Don’t Get a Trademark? for more information.
I have a business name, won’t that stop others from using my name?
No. A business name does not provide you any proprietary rights, and you cannot use it to prevent others from using your name (except in very limited circumstances). A business name is merely the name under which a business operates. Its function is to allow others to identify the business. Only a trademark will provide good legal rights to prevent others from copying your name or logo.
Read more on our page Trademarking a Business Name.
Who enforces your trademark?
It is your responsibility to ensure that your mark is not being infringed by another party. Government bodies, such as IP Australia, do not monitor trademark use. If you discover that your mark is being used without your permission you should contact your trademark attorney and take action against the other party.
Don’t hesitate to contact us should you have any queries, we are here to help.
What is the trademark application process?
There are common reasons why a trademark may not be accepted upon the first examination by a government. Review this page to know more about the trademark registration process.
What is a trademark search?
A trademark search is a review of the government’s official register of trademarks in order to check if there are any trademarks already on the register that are the same or similar to your trademark. Why do this? A trademark may not be registrable where it is considered too similar to a mark that is filed prior in time. It is therefore advisable to search the trademark register for marks similar to your intended mark before filing the application, particularly where money is to be invested into the mark.
The trademark search report will explain to you how easy or difficult it is likely to be to register your trademark.
Do I need a trademark search?
A trademark search is not strictly necessary, though it is strongly advisable. If you are just starting out then it will probably be the best option because it will be the quickest way to identify potential problems. On the other hand, if you are already using your trademark or are fully committed to it such that even a negative search report will not alter your decision to proceed to apply for a trademark then a search may not be useful.
Searching for trademarks on the registry is a fine art and we recommend the use of a trademark professional to conduct these searches before filing for a trademark. A trademark search conducted by Trademarkings will be issued with a full report detailing your prospects of achieving registration. Read here to find out more information on trademark searches.
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