Why Was My Trademark Rejected? Common Reasons in Australia

by Olivia Dalton
September 8, 2026

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If you’ve applied to register a trademark, receiving an IP Australia examination report can be concerning. However, a report doesn’t mean that the trademark was rejected in Australia. Instead, it’s an issue found with your application.

The next appropriate step depends on why the examiner objected.

? Fast facts

An adverse examination report usually means an objection, not a final rejection. IP Australia has identified an issue, not necessarily rejected your application.
The report identifies the exact legal ground you need to address.
Common issues include a mark that is not distinctive enough, a conflict with an earlier trademark, deceptive or confusing connotations, prohibited material, or errors in application details.
Your response may involve written submissions, evidence of use, changes to goods or services, or reconsidering the application.
There is a deadline for acceptance so address the report promptly.

Why was my trademark application rejected?

When you file a trademark application, IP Australia examines your submission against the requirements of the Trade Marks Act 1995 (Cth).

If an examiner considers the application fails to meet those requirements, they issue an adverse examination report identifying the relevant objection.

Common reasons include:

What IP Australia raises	What it means	Common response pathway
Lack of distinctiveness	The mark may not distinguish your goods or services from other traders’	Submissions and/or evidence of use
Earlier similar mark	A potential Section 44 trademark objection conflict exists	Compare marks and goods/services; assess available exceptions
Deception or confusion	The mark’s own meaning or connotation creates an issue	Address the specific Section 43 concern
Prohibited or scandalous matter	The mark may fall within statutory restrictions	Assess the objection or reconsider the mark
Formal or classification issue	Application details need correction or clarification	Correct or clarify where permitted

Is an adverse examination report the same as a rejected trademark?

No. An adverse examination report means the examiner has identified an issue preventing acceptance at that stage. You generally have an opportunity to respond and address the objection.

Here is a quick overview of terms related to your application:

Term	What it means
Adverse examination report	IP Australia has raised an objection that needs to be addressed
Accepted application	The examiner is satisfied the application can progress
Lapsed application	The application was not brought to acceptance within the required period
Rejected or refused application	A final adverse outcome has occurred

IP Australia may consider your submissions or evidence and either accept the application or issue a further adverse report if concerns remain.

What should you do next?

To respond to an IP Australia examination report, follow these steps:

Read the report carefully and identify every objection raised.
Note the acceptance due date shown in the report.
Check the legislation or section cited by the examiner.
Review any earlier trademarks the examiner has cited.
Decide whether the objection can be addressed through submissions, evidence, amendment, consent, or another available pathway.
Gather supporting material early, especially if evidence of use may be needed.
Submit your response through IP Australia Online Services.
Review any further examination report carefully if one is issued.

How long do you have to respond?

The key deadline isn’t when you need to respond, but when the application must be accepted.

Generally, you have 15 months from the date of the first examination report.

If a further report raises a new ground for rejection, it will start a new 15-month period.
If the application is not accepted within the applicable period, it lapses.

Responding early is still important because the examiner may issue a further report, request additional information, or require time to assess evidence.

Extensions may be available in certain circumstances. These may give you up to an additional six months, costing $100 per month.

Requirements and fees can change, so check IP Australia’s current guidance before relying on an extension.

What if my trademark is not distinctive enough?

A trademark needs to distinguish your goods or services from those offered by other traders. Section 41 deals with marks that are not capable of distinguishing one trader’s goods or services from another’s.

An objection may arise if the mark:

Directly describes the product or service.
Describes a feature, quality, or intended purpose.
Uses ordinary industry language.
Uses words competitors may reasonably need to use.
Is generic for the relevant goods or services.

For example, a business applying to register “FRESH BREAD” for bakery products is likely to face a more difficult distinctiveness issue than one using an invented name such as “Fresaro”.

Can evidence of use overcome a distinctiveness objection?

Sometimes. Evidence of how a trademark has been used and promoted may help an applicant overcome certain objections. The relevant legal test depends on the objection, the mark, and the evidence available.

Useful evidence may include:

When the use of the mark began
Whether use has been continuous
Sales and turnover figures
Advertising expenditure
Marketing campaigns and promotional materials
Website and social media use
Packaging, signage and product examples
Geographic reach across Australia
Customer exposure to the mark
Declarations and supporting documents

IP Australia generally expects evidence to show actual use, rather than intended future use. For certain pathways, you need to provide formal evidence in a declaration.

What if IP Australia finds a similar trademark?

A section 44 objection can arise if an earlier trademark is substantially identical with, or deceptively similar to, your proposed mark for similar goods, closely related services, similar services or closely related goods.

The examiner considers both:

The similarity between the trademarks
The relationship between the nominated goods and services
The relevant priority dates
Whether the earlier mark is registered or still pending

A practical review process is:

Search the cited mark on Australian Trademark Search.
Compare the words, sounds, visual appearance, and overall impression of the marks.
Compare the goods and services in each application.
Check priority dates.
Check whether the cited mark remains live and relevant.
Assess whether an exception or response pathway may apply.

With a thorough search, you can either find evidence to justify your trademark or make relevant updates in your new application.

Can you overcome a similar trademark objection?

A cited earlier mark doesn’t automatically mean your application can’t proceed. Depending on the facts, potential pathways may include:

Arguing that the marks are sufficiently different
Arguing that the goods or services are not sufficiently related
Establishing prior continuous use
Establishing honest concurrent use
Providing consent where legally relevant
Narrowing the nominated goods or services where permitted
Seeking deferment in appropriate circumstances
Relying on other circumstances recognised under section 44(3)

For example, honest concurrent use is one recognised pathway, but it requires evidence and is not automatic.

What is honest concurrent use?

Honest concurrent use broadly concerns genuine, honest use of similar marks in Australia by different traders.

Evidence matters. You may need to show use before the priority date, its duration, geographic extent, sales and advertising, and whether actual confusion has occurred.

It’s not enough that two businesses have simply used similar business names. The facts, timing, evidence and market context will determine the outcome of your application.

What if the mark may deceive or cause confusion?

A section 43 objection is different from a section 44 objection.

Section 44 is generally about conflict with an earlier trademark.
Section 43 concerns a connotation within the applied-for mark itself that could mislead or confuse consumers about the relevant goods or services.

For example, a brand name that strongly suggests goods come from a particular location, carry a particular quality, or have a particular composition when they do not may trigger a Section 43 concern.

Can offensive or prohibited words cause rejection?

Yes. Australian trademark law can restrict marks that include scandalous matter or signs whose use would be prohibited by legislation.

Potentially offensive material, unlawful use of terms, and protected symbols are common issues. It specifically notes restrictions that can apply to terms such as “Bank”, Red Cross signs, and Defence Force words or symbols.

Can you change your application after an objection?

Sometimes, but amendments are restricted. You may be able to:

Clarify specification wording
Narrow goods or services
Correct permitted application details
Make minor amendments that do not materially alter the trademark

You generally can’t use the amendment process to replace the applied-for mark with an entirely different brand.

Respond or file a new application?

This is a commercial decision as well as a legal one.

First of all, consider the strength of the objection, the evidence you have, and whether a replacement mark is likely to encounter the same issue. You should also weigh the value of the trademark for your brand’s commercial value, existing use and investment, and the costs of rebranding.

Here is a quick guide on when it’s better to respond vs file a new application.

Situation	Response may make sense	New application may be worth considering
The concern can be addressed with strong evidence	✓
A section 44 conflict may be overcome through an available pathway	✓
The goods or services can be appropriately narrowed	✓
The mark is fundamentally descriptive		✓
The business is already planning a substantial rebrand		✓
The issue cannot be corrected through an amendment		✓

What happens after you respond?

After reviewing your response, the examiner may:

Accept the application.
Request further information.
Issue a further adverse examination report.
Maintain the objection.

If accepted, the application is published for a two-month opposition period. Opposition is separate from examination. It is brought by another party after acceptance, rather than being the examiner’s initial objection.

If no opposition is filed, or an opposition is unsuccessful, the mark can proceed to registration.

What if you do nothing?

If you don’t bring the application to acceptance within the prescribed period, it may lapse.

Practically, this means:

The application does not proceed to registration.
Fees already paid are not transferred into a replacement application.
You may need to file again if protection is still needed.
A new filing may have a later priority date.
Another trader may file for a similar mark in the meantime.

How can you reduce rejection risk?

To reduce the possibility of your trademark being rejected, follow these steps:

Search the Australian Trademark Search before filing.
Check visually, aurally, and conceptually similar marks.
Compare both marks and the relevant goods or services.
Choose a mark with strong inherent distinctiveness.
Avoid relying mainly on descriptive or generic language.
Select appropriate classes and carefully drafted specifications.
Consider TM Headstart if early assessment would be useful.
Obtain trademark legal advice if the brand is commercially important or if search results are complex.

Next steps

An IP Australia examination report is a diagnostic document.

The most useful first step is to identify the exact ground raised, because a distinctiveness objection, an earlier-mark conflict, and a formal application issue each require different responses.

Once you determine the cause, decide whether to respond or reconsider the application. If you opt to respond, check the response deadline, assess your response options, and gather evidence.

If the trademark is commercially important or the report raises difficult section 41, 43 or 44 issues, consider legal support. Lawpath can help assess the strength of the response and the best commercial path forward.