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Trademark Law & Lawyers

Trademark registration, infringement, and brand protection.

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.

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Is a trade mark the right choice for you?

If you want to establish a brand for your product or service, you should consider creating a distinctive trade mark.

A trade mark protects the identity of your goods and services. Once you register a trade mark, you have the legal right to use, licence or sell it within Australia for the goods and services for which it is registered. You also have the right to prevent others from using it.

If you do not register, another trader could register your brand as a trade mark and you could be forced to defend your rights  - you may even need to re-brand.

Are you eligible for a trademark?

To apply for a trade mark, you must intend to use it.

The owner of the trade mark must be an individual, a company, an incorporated association or a combination of these.

You can not apply for a trade mark in the name of a business, but the individuals that own the business may apply for a trade mark.

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.

Trademark Legislation in Australia:

-  Circuit Layouts Act 1989
-  Circuit Layouts Regulations 1990
-  Copyright Act 1968
-  Copyright Regulations 1969
-  Designs Act 2003
-  Designs Regulations 2004
-  Patents Act 1990
-  Patents Regulations 1991
-  Plant Breeder's Rights Act 1994
-  Plant Breeder's Rights Regulations 1994
-  Trade Marks Act 1995
-  Trade Marks Regulations 1995

Trademark Court and Tribunal decisions:

-  Australian Copyright Tribunal – Decisions
-  Australian Designs Offices decisions
-  Australian Patent Offices decisions
-  Australian Trade Marks Offices decisions (AustLII)
-  Australian Trade Marks Office decisions (IP Australia website)
-  Australasian Legal Information Institute (AustLII)

Key National Bodies - trademarks

-  Advisory Council on Intellectual Property
Established in 1994 the Council advises the Federal Minister for Industry, Tourism and Resources on intellectual property matters and the strategic administration of IP Australia. The site includes documents relating to several reviews on IP conducted by the Council
-  Asia Pacific Intellectual Property Law Institute (APIPLI) (Murdoch University)
-  Attorney-  General's Department Copyright Law and Classification Branch
-  Audio Visual Copyright Society (Screenrights)

The copyright collecting agency for copyright holders in films and television programmes
-  Australasian Performing Right Association (APRA)

The copyright collecting society for music writers and publishers
-  Australian Digital Alliance

A non-  profit coalition of public and private sector interests formed to promote balanced copyright law and provide an effective voice for a public interest perspective in the copyright debate
-  Australian Copyright Council

A Comprehensive site containing links to legislation, treaties and other copyright organisations. Included are very useful Information Sheets providing information on copyright and particular publications eg music, recipes, house plans, computer software etc
-  Australian Library and Information Association (ALIA) Copyright Service
-  Australian Libraries' Copyright Committee

The main consultative body and policy forum for the discussion of copyright issues affecting Australian libraries and archives
-  Business Software Alliance
Select "News and Events" for information and court action regarding software piracy
-  Copyright Agency Ltd

A copyright management company which administers the right to reproduce copyright holders' works and the right to communicate their work to the public
-  Copyright Law Review Committee

Abolished 2005. Includes full text reports on copyright law reform published by the Committee from 1959-  2005
-  Department of Innovation, Industry, Science and Research
DIISR administers the Designs Act 1906 and the Trade Marks Act 1995
-  Intellectual Property Research Institute of Australia (IPRIA)
Established in 2002, IPRIA is a national centre for multi-  disciplinary research on law, economics and management of intellectual property and is based at the University of Melbourne
-  IP Australia (formerly Australian Industrial Property Organisation)
Administers patent, trade mark, design and plant breeder's rights applications
-  Licensing Executives Society – Australia and New Zealand
An international non-  profit professional society whose members are actively involved in professional and business activities concerned with transfer of technology and industrial or intellectual property rights
-  Patents OnLine Australia – IP Services

If you need legal advice regarding Trademark Law, then please complete your free legal enquiry form on the right, and we will put you in touch with a Trademark Law lawyer nearest you, who can help you with Trademark Law.

Our free legal enquiry service for Trademark Law extends to all locations Australia wide.

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