Burgess Thomson Lawyers

What Is A Trademark & Why You Need One To Protect Your Business

trademark stamp

What is a Trademark?

So, what is a trademark? A trademark is a way of identifying your unique goods and services from those of other businesses. It is the way you communicate to customers who you are, and is often your corporate logo, business name or particular signage.


What can you Trademark?

Whilst people often think trade marks are only in relation to a brand name this is untrue. Trademarks are not the same as having a business name, company name or domain name, rather, a trademark can be used to protect a variety of things including certain phrases, logos and aspects of packaging (such as colour, symbol, even non-visible signs such as sounds or fragrance).


Trademark vs Design

Importantly, there is a distinction between a trademark and intellectual property rights that exist for a design. A design needs to be unique or new to be registered whereas a trademark does not. Further, a design is specific in its application to visual features such as shape or pattern of a product.


Why are Trademarks Useful?

A trademark can be an incredibly beneficial marketing tool, helping to ensure your unique brand is protected. Having a trademark means you will hold the exclusive rights to use, licence and sell the mark. This ensures that the reputation and hard work poured into your business are protected from outside attempts to use your name. Using another person’s trademark, even if it isn’t registered, is against the law under the Competition and Consumer Act 2010. However, it is much more difficult to protect your trademark without the benefit of registration and will likely prove more difficult in the long run. Therefore, it is advisable that a trademark is correctly registered.


How do you get a Trademark?

The registration of trademarks is governed by IP Australia, a government agency of the Department of Industry, Innovation and Science.

Before applying to IP Australia you need to consider the class of goods or services you intend to use your trademark on. These goods or services are categorised into multiple classes as listed below:

  • Class 35 = advertising
  • Class 36 = financial, monetary and banking services
  • Class 37 = construction services
  • Class 38 = telecommunication
  • Class 39 = transport
  • Class 40 = treatment of materials
  • Class 41 = education
  • Class 42 = scientific and technological services
  • Class 43 = food and drink and accommodation
  • Class 44 = medical services
  • Class 45 = legal services

A more in-depth breakdown of each class can be found on the IP Australia website.

You then need to complete a search to ensure there are no similar trademarks either pending or already registered. This is usually down through IP Australia’s free trademark search. If a similar trademark exists, but it is in a different category of goods and services then it is possible that both can be registered.

Finally, an application can be submitted online with IP Australia. The reviewing process usually takes three to four months, after which your trademark will be open to opposition for two months. This will allow any third parties time to challenge your trademark for any reason. After these final two months your trademark will be registered. Trademark protection generally lasts for a period of ten years, after which it can be renewed.

Importantly, a trademark must be consistently used to remain registered. Another party can make a non-use application as early as five years after registration of a trademark and, if it can be demonstrated that the mark has not been used in the past three years it may be removed.


How can Burgess Thomson help?

The team at Burgess Thomson is experienced in all things business law and can help you decide if a trademark will be beneficial with you. If you do decide that a trademark is the way to go, the team at Burgess Thomson can assist in identifying the most suitable class, and facilitating the application process. We will ensure you are kept informed every step of the way and are equipped to make decisions in the best interest of you and your business.

Contact the team today to discuss more.


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