Anja Pich is a commercial lawyer and the Managing Lawyer at Lawpath. She practises across all areas of commercial law and advises businesses of every size, from first-time founders to established companies, on their legal, regulatory and commercial needs.
You can put the TM symbol on any brand name, logo or slogan you’re using to set your business apart, whether or not it’s registered. The ® symbol is different: you can only use it once your trade mark is actually registered with IP Australia. Use ® on an unregistered mark and you can commit a criminal offence.
The ® looks more official and more finished, so founders reach for it before they’ve registered anything. A designer drops ® into your logo because it looks neat, and every box you ship now puts you at risk of a fine of up to $21,840 per offence. The fix costs nothing once you know which symbol belongs at which stage.
- The TM symbol is free to use on any mark. It signals you’re claiming the mark, registered or not.
- The ® symbol is only for registered trade marks. No IP Australia registration, no ®.
- Using ® too early can be an offence. Section 151 of the Trade Marks Act 1995 sets a maximum of 60 penalty units, up to $21,840, for falsely representing a mark as registered.
- Neither symbol is compulsory. They don’t create rights on their own; they just put others on notice.
- Getting from TM to ® takes at least 7.5 months. That’s the earliest a filed application can reach full registration.
What does the TM symbol mean?
The TM symbol tells the world you’re treating a name, logo or phrase as your trade mark. You don’t need anyone’s permission to use it, and you don’t need a registration. If you’ve started a cafe called Sunday Roasters and you put a small TM next to the name, you’re staking a claim: this is our brand, hands off.
The TM symbol rests on common law rights, which are narrower and slower to enforce than the nationwide rights a registration gives you. Those rights exist only where you can prove you’ve built up a reputation and that someone else using the mark would mislead your customers. That’s a real right, but it’s slower and more expensive to enforce than a registration, because you have to prove the reputation first.
So the TM symbol is best understood as a “claim pending” flag. It’s useful while you’re trading and especially while a registration is in the pipeline. It costs nothing, it carries no penalty, and it quietly warns copycats that you consider the mark yours.
What does the ® symbol mean, and when can you use it?
The ® symbol means one specific thing: this trade mark is registered. In Australia, that means registered with IP Australia, the government body that runs the trade marks register. Once your mark is registered for particular goods or services, you get exclusive, nationwide rights to use it for those goods or services, and the ® is how you tell everyone.
The rule is strict. The ® is reserved for a mark that is on the Australian register, for the goods or services it’s registered under. A pending application stays at TM. The one exception covers marks registered overseas: you can use ® in Australia if you name the country beside it, like “® in the USA”, in text at least as big as the symbol.
Why bother? A registered trade mark is a genuine business asset. It gives you a clear legal basis to stop competitors, it can be licensed or sold, and the ® symbol itself is a deterrent. People who see ® know you’ve done the work and that infringing is a fast way to get a letter from your lawyer.
Can you get in trouble for using the ® symbol too early?
Yes, and this is the part generic brand guides skip. Falsely representing that a trade mark is registered when it isn’t is a criminal offence under section 151 of the Trade Marks Act 1995 (Cth). Using the ® symbol, or the words “registered trade mark”, on a mark that isn’t registered is exactly the kind of false representation the section is aimed at.
Most small businesses that do this aren’t trying to deceive anyone. They think ® is just a fancier version of TM, or a designer drops it into a logo because it looks neat. The offence turns on whether you know, or have reasonable grounds to believe, that the mark is registered in Australia, so check the register before the symbol goes on anything. The maximum penalty is 60 penalty units, which is up to $21,840 per offence at the $364 penalty unit that applies from 1 July 2026.
Until the day your registration comes through, use TM. It covers everything you’re entitled to claim. Switch to ® the day the register lists your mark.
TM vs ®: which should you use right now?
Work it backwards from your registration status. If you’re trading under the name, or you’ve filed and are waiting on IP Australia, use TM, because a pending application gives you a claim through use and nothing more. Once registration is granted, switch to ® for the goods and services the registration covers, and keep TM on everything else.
Class coverage is where people slip. A trade mark is registered for specific classes of goods and services. If you registered your name for coffee but you’ve since launched a line of branded clothing, the ® doesn’t automatically stretch to the clothing. Use it where it applies, and TM elsewhere.
What about the SM symbol?
You’ll occasionally see SM, for “service mark”, on American branding. It’s the service equivalent of TM. In Australia, though, there’s no separate service-mark system. A trade mark here covers both goods and services, so you don’t need SM at all. If you provide services and want to flag an unregistered mark, just use TM. Save yourself the confusion.
How do you get from TM to ®?
Earning the ® means registering the trade mark. The path is well-worn, and knowing the timeline helps you plan when that symbol can legitimately go live.
- Search first. Check your mark against existing registrations before you spend a cent, using the Australian Trade Mark Search. A clash found now is far cheaper than one found later.
- Pick your classes. There are 45 classes of goods and services. You register for the ones that match your core business, and choosing wrong is a common and costly slip.
- File the application. You lodge with IP Australia. From here, keep using TM while you wait.
- Examination. IP Australia examines the application, which typically takes a few months, and either accepts it or raises an adverse report you need to answer.
- Opposition period. Once accepted, there’s a two-month window where others can oppose. If nobody does, you move to registration.
- Registration. The mark registers, protection runs for 10 years and is renewable, and now, finally, the ® symbol is yours to use.
Realistically, the earliest a mark reaches full registration is around seven and a half months after filing, and it’s often longer if an examiner raises issues. That whole time, TM is your symbol. Our guide on how to file a trade mark walks through each step, and if you want the cost picture, see how much it costs to trademark a business name.
A worked example: when the ® becomes yours
Picture a founder launching a skincare brand called Driftwood. She starts selling in February and puts a small TM next to the name on her packaging and website straight away. That’s correct: she’s claiming the mark through use, and TM is the right symbol while nothing is registered.
In March she files a trade mark application with IP Australia, registering for cosmetics. Nothing changes on the packaging yet. She keeps the TM symbol, because ® waits for registration. Through examination over the following months, still TM.
Her mark is accepted, the two-month opposition window passes with no objections, and by late October the registration comes through. Now she updates her packaging to the ® symbol for her cosmetics line. If she later launches branded candles that aren’t covered by the registration, those carry TM until she registers that class too. One brand, both symbols, each used correctly.
Have exclusive rights to your brand and logo and safeguard your intellectual property
Where founders go wrong with trade mark symbols
Thinking a registered business name gives them the ®. Registering a business name with ASIC lets you trade under that name. Brand ownership and the right to use the registered symbol come from a separate registration. Only an IP Australia trade mark does that. Plenty of owners confuse the two registers and assume the ASIC paperwork covers them.
Borrowing the ® from an overseas registration. A mark registered in the United States or the United Kingdom needs its own Australian registration before a bare ® can go on it here. Until then, the ® must sit beside the country name, like “® in the UK”, in text at least as big as the symbol.
Putting TM on something generic. You can pop a TM on anything, but it only means something if the mark is actually distinctive. A TM on a plain descriptive phrase that every competitor uses is just decoration. Distinctive marks are the ones that build rights.
Dropping the symbol once registered. Once you’ve earned the ®, using it consistently strengthens the deterrent and supports your position if you ever need to enforce. Register, then actually use the symbol.
Frequently asked questions
Do you have to register a trade mark to use the TM symbol?
No. The TM symbol is free to use on any mark you’re claiming, registered or not. It signals that you treat the name, logo or slogan as your trade mark. It doesn’t create registered rights on its own, but there’s no penalty and no application needed to use it.
What happens if you use the ® symbol before registration?
Using the ® symbol on an unregistered mark can be a criminal offence under section 151 of the Trade Marks Act 1995, because it falsely represents the mark as registered. The maximum penalty is 60 penalty units, up to $21,840 from 1 July 2026. If your mark isn’t registered yet, use TM instead and switch to ® only once registration is granted.
What’s the difference between TM and ® in Australia?
TM can go on any mark you’re using, registered or not, and relies on common law rights. The ® symbol can only be used once a mark is registered with IP Australia, and it signals exclusive, nationwide rights for the registered goods or services. TM is a claim. ® is a registration.
Can you use TM and ® on the same brand?
Yes, depending on what’s registered. If your mark is registered for some goods or services but not others, use ® where the registration applies and TM elsewhere. The registered symbol only covers what you’ve actually registered, not your whole business by default.
Is using a trade mark symbol compulsory?
No. Neither TM nor ® is required by law, and your rights don’t depend on displaying them. The symbols put others on notice, which can strengthen a deterrent and support enforcement, but you can hold and enforce a trade mark without ever printing a symbol.
Can you use the ® symbol if your trade mark is registered overseas?
Only with the country named. ® in Australia needs an Australian registration. The one exception is naming the country beside the symbol, like “® in the USA”, in text at least as big as the symbol.
Getting your mark protected
If you’ve been using TM, you’re doing it right. The TM symbol is exactly what you should be using until a registration comes through, and plenty of strong brands sit at that stage for months.
When you’re ready to turn that claim into the real thing and earn the ®, the one action that matters is registering the mark. You can start your trade mark registration with Lawpath in minutes, and the process includes a search so you find any clashes before you file. Using TM? Good. Now file, and give ® a date.
