Tom Willis is an award-winning marketing leader and Co-founder of Lawpath. Tom’s journey journey includes steering several entrepreneurial projects and addressing the unique challenges faced by small businesses. As the Chief Marketing Officer at Lawpath, Tom has been pivotal in shaping the company’s marketing strategy and business growth.
To register a trademark in Australia, you check your brand is available, choose the classes of goods and services you want to cover, file an application with IP Australia, pass examination and a two-month opposition window, and then your mark goes on the register. The whole process takes at least seven months, and government fees start at $250 per class.
Most founders put this off. The brand is live, sales are coming in, and trademarks feel like something for “later”. Later is usually when a cease and desist letter lands, or when someone else files your name first. The fix takes an afternoon of prep, and this guide walks you through every step.
- It takes at least seven months and costs from $250 per class. That is the IP Australia fee for a standard online application using the picklist. There is no separate registration fee at the end.
- Search before you file. IP Australia doesn’t refund fees if your application fails because someone else got there first.
- Your classes set the limits of your protection. You can’t add new classes after filing except in rare cases, so think about where the business is heading, not just where it is today.
- A registered business name is not a trademark. ASIC registration lets you trade under a name. It doesn’t stop anyone else using it.
- Use ™ now, ® only after registration. Using ® on an unregistered mark is an offence under the Trade Marks Act.
What does a registered trademark actually protect?
Section 17 of the Trade Marks Act 1995 (Cth) defines a trademark as a sign used, or intended to be used, to distinguish your goods or services from everyone else’s. In plain English, it’s whatever customers use to recognise that something came from you.
Names, logos and slogans are the obvious ones. The Act goes further. Shapes, sounds, packaging, colours and even scents can be registered if they genuinely identify your business. Those non-traditional marks are harder to get over the line, so most small businesses start with a word mark.
Registration gives you the exclusive right to use your mark across Australia for the goods and services you list. It also gives you a clear legal basis to stop copycats. Without it, you’re relying on passing off or the Australian Consumer Law, which means proving your reputation in court. That’s slow and expensive.
The Hungry Jack’s lesson
When Burger King arrived in Australia in the early 1970s, a small Adelaide takeaway already held the Burger King trade mark here. The global chain couldn’t use its own name. So it opened as Hungry Jack’s, which is why Australians still order Whoppers under a different sign.
Size didn’t come into it. The takeaway wasn’t famous, it simply got there first. Australian trademark law rewards whoever files first for a given class of goods or services, and size doesn’t change that.
Isn’t a registered business name enough?
No. This is the most common wrong assumption we hear.
Once you register a business name with ASIC, you get permission to trade under that name. That’s it. ASIC will even register names that are only slightly different from yours, and a registered business name gives you no power to stop a competitor using something similar.
A trademark works the other way around. It’s a property right. It lets you stop others using your name, or anything deceptively similar, for the goods and services you’ve registered. It can even be used against someone who registered the business name before you did, if they’re infringing your mark.
Company names and domain names sit in the same bucket as business names. None of them give you exclusive rights. For a side-by-side breakdown, see our guide to the difference between a trademark and a business name.
Who should own your trademark?
Anyone can apply to register a trademark in Australia: an individual, a company, a trustee, or several people jointly. You don’t need an ABN, and you don’t need a lawyer to file. The harder question is who should be the owner.
Get it wrong and fixing it later means an assignment, a fee and paperwork at exactly the moment you’d rather be closing a deal. Here’s how we’d think about it:
- Trading through a company? The company should normally own the mark. Investors and buyers expect the brand to sit inside the business they’re paying for.
- Want the brand protected if the trading company fails? Some founders hold IP in a separate holding entity and license it to the trading company. That needs a proper IP licensing agreement, or the arrangement won’t hold up.
- Sole trader today, company next year? File in your own name if you need protection now. Plan to transfer it with a trademark assignment once the company exists.
- Overseas parent company? Decide which entity owns the Australian mark before you file. Moving it between related entities later is doable but annoying.
One trap catches people constantly. If a freelance designer drew your logo, they probably own the copyright in the artwork unless your contract says otherwise. Sort out an assignment of intellectual property before you file the logo, not after a buyer’s lawyer asks for it.
Have exclusive rights to your brand and logo and safeguard your intellectual property
How to register a trademark in Australia: the 7 steps
IP Australia describes four formal stages: application, examination, acceptance and registration. In practice, most of the work (and most of the mistakes) happens before you hit submit. So we’ve split the process into seven steps, with the first three done before you pay a cent.
Step 1: Check that your mark can actually be registered
Your mark has to be capable of distinguishing your goods or services. IP Australia won’t register something that other traders might reasonably need to describe their own products.
That rules out a surprising number of names founders love. “Sydney Plumbing” for plumbing. “Fresh Organic Juice” for juice. “Best Accountants” for accounting. These describe the product, the quality or the location, and examiners object to them as a matter of routine.
Here’s a rough scale, from hardest to easiest to register:
| Type of mark | Example (for coffee) | Registrability |
|---|---|---|
| Generic | Coffee | Never registrable |
| Descriptive | Rich Roast | Objection almost certain; needs strong evidence of use |
| Suggestive | Morning Kick | Often accepted; hints at the product without describing it |
| Arbitrary | Pelican | Strong; a real word with no link to coffee |
| Invented | Kovaro | Strongest; a made-up word |
Marketing teams love descriptive names because customers get them instantly. Lawyers love invented ones because they’re easy to protect. The sweet spot for most small businesses is suggestive or arbitrary.
Some marks are off limits no matter how distinctive they are. That includes marks that are scandalous, likely to deceive, or that use protected symbols such as the Red Cross or official coats of arms.
Step 2: Search the register, then search the real world
Start with the Australian Trade Mark Search, IP Australia’s free database of registered and pending marks. Our guide on how to use the Australian Trade Mark Search walks through the filters. IP Australia’s TM Checker tool also gives a quick first read on whether your idea looks available.
Don’t stop at exact matches. Examiners compare marks on sound, look and overall impression. “Kwik Klean” and “Quick Clean” are the same mark as far as they’re concerned. So are “Luxe Nails” and “Lux Nail Bar” if both cover beauty services.
Then look beyond the register. Google your name, check ASIC’s business name register, search Instagram and TikTok handles, and look on Amazon, Etsy and eBay. Someone using a name without registering it can still oppose your application if they’ve built a reputation in it.
Where this goes wrong is the “I’ll just add a word” fix. A founder spots an existing mark, adds a descriptive word to theirs, and assumes the problem is solved. It usually isn’t. Examiners look at the dominant part of the mark and at the class specifications on the register, not at what either business actually sells day to day.
Step 3: Choose your classes and write your specification
Every good and service falls into one of 45 classes under the international Nice Classification. Classes 1 to 34 cover goods. Classes 35 to 45 cover services. Your registration only protects you in the classes you choose.
IP Australia’s picklist has more than 60,000 pre-approved descriptions sorted into those classes. Using it cuts your fee from $400 to $250 per class and removes a common source of examination objections. Our explainer on the IP Australia picklist shows how it works.
Most often, the mistake we see is filing for the product and forgetting the service, or the other way around. A few real-world combinations:
| Business | Likely classes | What people forget |
|---|---|---|
| Café that roasts its own beans | 30 (coffee), 43 (café services) | 35 if you sell other brands’ products or run an online shop |
| Skincare brand | 3 (cosmetics) | 35 (online retail), 44 (beauty treatments) if you offer them |
| Software or app startup | 9 (downloadable software), 42 (SaaS) | Choosing 9 only when the product is really a hosted service |
| Consultant or coach | 35 (business consulting) or 41 (training) | 41 if you run workshops, courses or webinars |
| Fashion label | 25 (clothing) | 18 (bags) or 14 (jewellery) if accessories are planned |
Be ambitious, but not greedy. Cover what you sell now plus what you genuinely plan to sell in the next few years. Stuffing in classes “just in case” costs money, and any class you don’t use for three years can be challenged for non-use.
Step 4: Pick a standard application or TM Headstart
IP Australia offers two routes. The standard application is cheaper and suits clear-cut marks. The TM Headstart pre-application service costs a little more but gives you an examiner’s view before you formally file.
| Standard application | TM Headstart | |
|---|---|---|
| Minimum cost per class | $250 (picklist) | $330 ($200 request + $130 conversion) |
| Examiner feedback before filing | No | Yes |
| Changes after feedback | Very limited once filed | Yes, with a fee, within 5 days |
| Deadlines | Relaxed | Strict; the request lapses if you miss one |
| Best for | Invented or clearly distinctive marks with a clean search | Marks with any descriptive element, or a similar mark already on the register |
Our view: if your search turned up anything that made you pause, pay the extra $80 per class. If Headstart comes back negative, you can walk away having spent $200 instead of $250, without an objection sitting on your file.
One catch. The Headstart response windows are five days each, so don’t start it the week you’re moving house or launching a product.
Step 5: File your trademark application
Applications are lodged through IP Australia’s online services portal. You’ll need:
- The owner’s details (the individual or entity you settled on above)
- A clear representation of the mark: the words, or a clean image file of the logo
- Your classes and goods or services descriptions, ideally from the picklist
- An Australian address for service, which can be your own or your lawyer’s
- Payment of the filing fee for every class
Check everything twice. Once an application is filed, you can’t change the mark itself in any meaningful way, and you can’t widen the goods and services. A typo in the mark can mean paying to file again.
Your filing date matters more than your registration date. Once registered, your rights run from the day you filed. If you’ve already filed overseas in the last six months, you may be able to claim that earlier date too. Our explainer on how a priority date works covers the details.
Step 6: Examination (acceptance or an adverse report)
IP Australia usually examines applications three to four months after filing. It publishes current wait times weekly, and they move with demand. An examiner checks the formalities, whether the mark is distinctive, and whether it clashes with earlier marks.
You’ll get one of two outcomes. Either the mark is accepted, or you receive an adverse examination report setting out the objections. An adverse report is common and it isn’t a rejection. It’s the start of a conversation.
Two objections come up far more than any other. The first is a lack of distinctiveness under section 41, where the examiner says your mark describes your goods or services. The second is a conflicting mark under section 44, where an earlier mark is substantially identical or deceptively similar and covers overlapping goods or services. Knowing which one you’ve got tells you which fix to reach for.
You have 15 months from the first report to get the application accepted, and extensions are available in some circumstances. The usual ways to respond are:
- Written submissions arguing the examiner has it wrong, for example that your mark and the cited mark create a different overall impression
- Narrowing your specification so your goods or services no longer overlap with the earlier mark
- Evidence of use showing customers already recognise your mark as yours, which is how descriptive marks get over the line
- A consent letter from the owner of the conflicting mark, if they’re relaxed about coexisting
Need things faster? You can request expedited examination if you have a genuine reason, such as a launch date or a court case. It speeds up examination but not the minimum time to registration.
Step 7: Acceptance, opposition and registration
Once accepted, your mark is advertised in the Australian Official Journal of Trade Marks. For the next two months, anyone can file a notice of intention to oppose it. An opponent then has one more month to file a statement of grounds and particulars explaining why.
Should that happen, you’ll need to file a notice of intention to defend within a month, or your application lapses. Oppositions then move through an evidence stage and, if nobody backs down, a hearing before IP Australia. Most applications never see one.
If nobody opposes, or you win, the mark is registered and you receive your certificate. The earliest this can happen is around seven and a half months after filing. That window exists to give overseas applicants their six months to claim priority. Good news: there’s no separate registration fee to pay at this point.
How much does it cost to register a trademark in Australia?
Government fees are charged per class and are GST-free. These are the current figures from IP Australia’s timeframes and fees page:
| Application type | Fee per class |
|---|---|
| Standard application, picklist | $250 |
| Standard application, custom description | $400 |
| Series application, picklist | $400 |
| Series application, custom description | $550 |
| TM Headstart (request + conversion) | $330 minimum |
| Postal application | $450 |
Worked example: a café registering its name for coffee (class 30) and café services (class 43) through the picklist pays $500. Want the logo protected too? That’s a separate application, so budget another $500.
Professional help sits on top of those fees and covers the search, class strategy and drafting, and dealing with IP Australia on your behalf. The real cost to watch is the response to an adverse report. A written submission costs far less than a full evidence-of-use case. A proper search before filing is the cheapest insurance you’ll buy.
How long does it take to register a trademark?
For a clean application with no objections and no opposition, here’s the timeline:
| Stage | When it happens |
|---|---|
| Filing | Day 1; you receive a filing date and application number straight away |
| Examination | Around 3 to 4 months after filing |
| Advertisement and opposition window | 2 months from advertisement of acceptance |
| Earliest registration | Around 7.5 months after filing |
| Protection lasts | 10 years from the filing date, renewable indefinitely |
An adverse report can add months, and an opposition can add a year or more. That’s the real reason to file early. The clock starts when you file, not when you get around to caring.
Your checklist before you register a trademark in Australia
Copy this list into your notes app and tick it off before you pay any fees. It takes about an hour, and it catches most of the problems that lead to adverse reports.
- Write down the exact mark you want to protect, spelled the way you’ll use it.
- Ask yourself honestly whether it describes what you sell. If it does, plan for TM Headstart or professional help.
- Search the Australian Trade Mark Search for identical and similar-sounding marks in related classes.
- Search Google, ASIC’s business names register, social handles and online marketplaces.
- List every product and service you sell now, plus anything you plan to launch in the next three years.
- Match each one to a picklist entry and note the class number.
- Confirm who the owner should be: you personally, your company, or a holding entity.
- If someone else designed your logo or built your product, check you own the IP in writing.
- Decide between a standard application and TM Headstart.
- Set up an evidence-of-use folder and save your first dated invoice or screenshot in it.
Stuck on step 3 or step 6? That’s normal. Those are the two steps where a second pair of trained eyes earns its fee.
Word mark or logo: which should you file first?
Only have the budget for one application? File the word mark. Almost every time.
Word marks protect the name however it’s written: any font, any colour, any layout. A logo registration protects that specific design. Rebrand the logo in three years and the old registration protects a picture you no longer use.
There’s one exception: a descriptive name paired with a distinctive design. If “Sydney Coffee Roasters” won’t get through examination on its own, the logo might carry it. Just understand the protection comes mostly from the design, not the words.
What we see in Lawpath consultations
Lawpath lawyers handle trademark questions every week, from first-time founders filing a single class to businesses juggling brands in several countries. The same patterns keep coming up.
Adding a word rarely fixes a conflict
Here’s a recurring scenario. An applicant receives an adverse report citing two earlier marks that share their brand’s main word. They point out that their mark adds a second word and that their business does something completely different. Neither argument lands on its own. IP Australia compares the marks as registered and the class specifications as written. The practical options are narrowing the specification, making targeted submissions, or asking the earlier owners for consent.
Pre-launch brands need an evidence file from day one
Distinctiveness objections are overcome with evidence of use: sales, advertising spend, press and customer recognition. Founders who haven’t launched have nothing to show, and we’ve seen advisors recommend parking an application until the brand has traded for a few years. Start a folder today. Save dated invoices, ad receipts, screenshots of your website and social posts, and packaging photos. Future you will be grateful.
Trademarks belong in the “first documents” conversation
Founders who book a planning session to ask what documents a new company needs hear a familiar list from our lawyers. Trademark registration sits right next to the constitution, shareholders agreement, contractor agreements and privacy policy. Founders tend to treat it as a year-two job. It isn’t. The filing date is the thing you can’t buy back.
Unassigned IP surfaces at the worst possible time
Business-sale consultations show a consistent pattern. The founder is ready to sell, and then discovers the contracts with their developer or designer never actually transferred the IP. The brand sits on the register in the company’s name, but the logo artwork or software behind it doesn’t. Buyers notice. Fix ownership while everyone is still on good terms.
Search and filing work best as one job
Many of the trademark briefs Lawpath receives ask for an availability search and filing as a single piece of work. That instinct is right. A search done by the same person who drafts your specification catches conflicts in the exact classes you’re about to claim.
What should you do while your application is pending?
Seven months is a long time to sit on your hands. Here’s what’s worth doing:
- Use the ™ symbol. It tells the world you claim the mark, and you can use it on anything, registered or not.
- Hold off on ®. Section 151 of the Act makes it an offence to represent a mark as registered when it isn’t. Switch only once your certificate issues.
- Keep building your evidence file. If an objection lands, dated proof of use is your best tool.
- Check your online services inbox. IP Australia sends everything there, and missed deadlines can sink an application.
- Watch for scams. IP Australia has warned that scammers impersonate it to target applicants with fake invoices. Verify any unexpected email before you pay anything.
Should you hold back on printing packaging until registration? Not necessarily. If your search was thorough and examination has gone smoothly, the risk is low. If you’ve had an adverse report citing a similar mark, wait before ordering 10,000 labels.
What happens after your trademark is registered?
Registration isn’t the finish line. Three things keep your trademark alive:
- Renew every 10 years. Miss the deadline and there’s a short grace period with late fees, then the mark comes off the register. Our guide on renewing your trademark explains the timing.
- Keep using it. A registered mark that goes unused for a continuous three-year period can be removed on a non-use application by a third party.
- Enforce it. IP Australia doesn’t police the register for you. Set a quarterly reminder to search for similar new applications, and act early when you spot a copycat.
Your registration is also an asset. You can license it, sell it or use it as security. Keep the ownership records up to date with IP Australia whenever the owner changes.
What if you want protection outside Australia?
An Australian registration stops at the border. If you sell online to overseas customers, manufacture offshore or plan to expand, you’ll need protection in each country that matters to you.
The simplest route for most small businesses is to register a trademark in Australia first, then use that application as the base for an international application under the Madrid Protocol. One application, one set of fees paid in Swiss francs, and you pick the countries. Each country still examines the mark under its own rules, so a mark accepted here can be refused elsewhere.
Timing is the part people miss. File overseas within six months of your Australian filing and you can claim your Australian filing date as your priority date in those countries. Wait longer and anyone who files in the meantime gets ahead of you.
Manufacturing in China? Put it near the top of your list. China runs a strict first-to-file system, and brand squatting there is a well-known problem for Australian exporters. Losing your own name in the country that makes your product is a painful way to learn this.
Should you register a trademark yourself or get help?
Plenty of Australian businesses file their own trademarks, and IP Australia’s portal is built for it. Whether you should comes down to how confident you are in two things: your search and your specification.
| DIY is reasonable if | Get help if |
|---|---|
| Your mark is an invented word | Your mark includes a descriptive word, place name or surname |
| Your search found nothing similar in any related class | Your search turned up anything that made you hesitate |
| Your goods or services fit neatly into picklist entries | You sell across several classes or your offering is unusual |
| You’re filing in Australia only | You plan to expand overseas in the next few years |
| Nobody else was involved in creating the brand | A designer, developer or co-founder helped create it |
The honest trade-off: DIY saves professional fees upfront, but an adverse report or a narrow specification can cost more to fix later than getting it right first time. If the brand is central to the value of your business, treat the filing like any other important contract.
Lawpath’s trademark lawyers list Lawpath as your address for service when they file for you. All IP Australia correspondence, and any contact from a third party challenging your mark, comes to us first. We review it, report back and tell you what to do next.
Frequently asked questions about registering a trademark in Australia
How much does it cost to register a trademark in Australia?
IP Australia’s fee starts at $250 per class for a standard online application using the picklist, or $400 per class with a custom description. TM Headstart starts at $330 per class. There’s no separate registration fee. Professional fees, if you use a lawyer, sit on top.
How long does it take to register a trademark in Australia?
At least seven months, and the earliest registration date is around seven and a half months after filing. Examination happens roughly three to four months in. An adverse report or an opposition can stretch the process to a year or longer.
Can I register a trademark myself?
Yes. Anyone can file through IP Australia’s online services portal, and you don’t need a lawyer. DIY works best for distinctive, invented names with a clean search. If your name is descriptive or you found similar marks, professional help usually pays for itself.
Does registering my business name protect my brand?
No. A business name registered with ASIC only lets you trade under that name. It gives you no right to stop others using the same or a similar name. Only a registered trademark gives you exclusive rights for your goods and services.
Should I trademark my name or my logo?
Start with the name as a word mark. It protects the name in any font, colour or layout and survives a rebrand. Add the logo later if the design itself is valuable, or if your name is too descriptive to register on its own.
When can I use the ® symbol?
Only once your trademark is registered. Until then, use ™. Representing a mark as registered when it isn’t is an offence under section 151 of the Trade Marks Act 1995.
What happens if someone opposes my trademark?
They must file a notice of intention to oppose within two months of advertisement, then a statement of grounds within a month. You then have a month to file a notice of intention to defend. Many oppositions settle through negotiation before any hearing.
Can I trademark a name I’m not using yet?
Yes. The Act covers marks you intend to use, so you can file before launch and lock in your filing date. Just start using it within a reasonable time. Once registered, three continuous years of non-use leaves it open to removal.
How long does a trademark last in Australia?
Ten years from the filing date. You can renew for further 10-year periods indefinitely, as long as you keep paying renewal fees and keep using the mark.
Does an Australian trademark protect me overseas?
No. Trademarks are territorial. You can extend protection through the Madrid Protocol using your Australian application as a base, or file directly in each country. File overseas within six months of your Australian filing to claim the same priority date.
Do I need to register a trademark in each state?
No. There’s one national register run by IP Australia. When you register a trademark in Australia, it covers every state and territory. That’s a big advantage over a business name or unregistered use, where your rights can be limited to the area where you’ve built a reputation.
What if someone is already using my name but hasn’t registered it?
That’s a real risk. An earlier user with a reputation in the name can oppose your application, and may still be able to keep trading in their area. Search social media and marketplaces as well as the register, and get advice before filing if you find an earlier user.
Ready to protect your brand?
If you’ve read this far, you’re already ahead of most founders. You’re not late. Plenty of businesses trade for years before filing, and most names are still available. What matters is the date you file, and you can lock that in this week.
Lawpath has helped more than 650,000 Australian businesses with the legal side of running a business, and trademarks are one of the quickest wins. Our lawyers search your mark, recommend the right classes, file with IP Australia and handle every piece of correspondence until your certificate arrives. Start your trademark registration today.
