A trademark is a unique name or logo which is used by a business to distinguish it from its competitors in the marketplace. Often the preferable trademarks are ones that are instantly recognisable and immediately identify the product or service of the business in the minds of customers and other people.

The Trade Marks Act 1995 (Cwth) (Act) defines a trademark as “a sign used, or intended to be used, to distinguish goods or services dealt with or provided in the course of trade by a person from goods or services so dealt with or provided by any other person.”

When a trademark is registered, it provides the owner of that trademark with the ability to prevent other people from using the same trademark or a trademark that is deceptively similar to the registered trademark. An important distinction to note that a trademark does not mean that you can prevent competitors from using the same or similar goods but requires them to only sell the goods under a clearly different mark.

What protection does registering a Trademark offer for my business?

It is prudent business practice to register your trademark with the IP Australia to obtain a proper record of your right to use your trademark. The registration of a trademark grants you a right pursuant to the Act to prevent others from using the trademark without the registered owner's permission - i.e. to prevent infringement.

What is the Difference between a Business, Trade or Company name and a Trademark?

It is a common misconception that the registration of a business name gives you ownership in the name, this is not the case. In Australia you register a business name in the state in which you intend to trade the business. This means that if you register a business name in Queensland you have the right to trade under that name in Queensland but not in other states unless you register that name in those states.

A company name is assigned by the Australian Security and Investments Commission (ASIC), it is a unique name however it does not technically give you ownership of the name. Although, in most circumstances, it prevents the use of that name in Australia by any other person.
However a trademark grants you the right to use that name, to the exclusion of all others is Australia (and potentially worldwide if you apply for an international trademark).

In order to be registrable a trademark must be:

• distinctive for the goods/services for which registration is sought;
• not deceptive, or contrary to law or morality; and
• not identical or similar to any earlier marks for the same or similar goods/services.

It is important when starting a business to consider not only what the business is to be called and what name is to be used to attract customers but also whether or not the name will infringe another businesses Trademark.

At Masons Lawyers we have extensive experience in being able to conduct the right searches to ensure that your trademark is unique, we can undertake a variety of searches to ascertain what, if any, trademarks, business or company names are in deceptively similar to your proposed name. Contact us today to speak to one of our lawyers today.

Masons Lawyers, our experience is your advantage.

Jeremy Streten
Legal Practice Director
Masons Lawyers Brisbane