The value of a trademark ultimately depends on how enforceable your trademark is. Both registered and unregistered trademarks are legally enforceable, but an registered trademark is much easier to enforce than an unregistered trademark.

In this article, we’ll discuss how you can enforce your trademark if it hasn’t been registered. Further, we’ll outline why it’s in your interests to register your trademark early on.

What is a trademark?

A trademark is a distinct sign or symbol that businesses can use to claim exclusive possession over their products and services. A trademark is a meaningful addition to any business structure. This is because it prevents competitors from representing your products and services as their own. Therefore, a trademark is essential for maintaining a competitive advantage. Examples of trademarks include Qantas’ iconic kangaroo symbol, Nike’s tick or Apple’s well-known apple.

What is the difference between a registered and unregistered trademark?

There are two key differences between registered and unregistered trademarks:

  • An unregistered trademark will often display the ™ symbol, whilst a registered trademark uses the ® symbol. It is important to understand this distinction. This is because using the ® symbol on an unregistered trademark constitutes as an offence under the Trademarks Act 1995 (Cth) which imposes a penalty of up to $6600.
  • The sources of protection for unregistered trademarks differ from the sources of protection for registered trademarks. Unregistered trademarks are protected by the common law whilst registered trademarks are protected by statute. In practice, this means that owners of unregistered trademarks will have to prove ownership by establishing several grounds. In contrast, owners of registered trademarks will automatically receive protection.

How do I enforce my unregistered trademark?

In order to enforce your unregistered trademark, you must be able to fulfil three conditions:

  • Demonstrate that your trademark has a reputation of being associated with a particular good or service. The more unique your trademark, the likely it is that a Court will find in favour of the reputation requirement.
  • Demonstrate either that someone has or will use your trademark in a deceptive manner, such as using your trademark to attract customers.
  • Demonstrate that this deceptive use of your trademark has either actually caused damage to the reputation of the business or will most likely bring your business into disrepute.

What is the safest option?

The safest option is to register your trademark. If you are unsure whether a trademark is suitable for you, Lawpath can promptly connect you to a range of Trademark Attorneys for further consultation.

As mentioned before, proof of ownership for unregistered trademarks is subject to the decision of the Court. This means that owners must fulfil the three conditions before they can enjoy any legal protection. In stark contrast, proof of ownership for registered trademarks arise immediately upon registration, meaning that the owner can avoid the time-consuming process of gathering and presenting evidence. Furthermore, there is a level of uncertainty attached to the use of unregistered trademarks. This is because claimants may be unable to successfully prove reputation.

Don’t know where to start? Contact a Lawpath consultant on 1800 529 728 to learn more about customising legal documents and obtaining a fixed-fee quote from Australia’s largest legal marketplace.

Eric Zhang

Eric currently works in the content team as a legal intern for Lawpath. He is in his final year of a Bachelor of Commerce with a Degree in Bachelor of Laws (Majoring in Finance).