What’s a Trademark and How do You File One?

What’s a Trademark?

A trademark, as defined in section 17 of the Trade Marks Act 1995 (Cth), is “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.”

In other words, a trademark is a legally registered distinguishing component that sets your business apart from your competitors. Components of a business that are regularly trademarked include brand names, logos and slogans. Even a specific shade of a colour can be registered as a trademark! For example, Cadbury’s iconic purple colour is trademarked!

Who can apply for a trademark?

Anyone can apply for a trademark. Use the user-friendly LawPath Trademark Registration process to register your trademark hassle-free and quickly!

Step 1: Trademark Search

The first step you must take is to search for conflicting or similar trademarks before you submit your trademark for approval. Using the LawPath Trademark search feature, you can search for conflicting trademarks before you submit your application. It is important to ensure that your trademark is not too similar to another Australian trademark to prevent difficulty in securing your rights, and more importantly prevent infringement of another entity’s trademark rights.

Did you know: When Burger King first expanded into the Australian market, it found that the business name ‘Burger King’ was already trademarked by a take away food shop in Adelaide when conducting their trademark search. As a result, Burger King is called Hungry Jack’s only in Australia! This is a clear example of the strength of a trademark.

What is the process for a trademark registration?

Step 2: Filing the Application and Classes

As trademarks distinguish the goods or services of different businesses, it is important that you advise what those goods or services are when you file an application.

All goods and services fall into one of 45 ‘classes’ that are listed under an international agreement that have been adopted by a majority of countries around the world. Through the the LawPath Trademark Registration process, we will recommend the most suitable classes you require.

When you submit your online application, our LawPath Trademark Attorneys will review your application, and advise you if your trademark is registrable within 5 days.

The chosen class number and specification of the goods or services being claimed then will be prepared and filed with the trademark office for you by our LawPath Trademark Attorneys.

We will be listed as your agent on the official record as the “address for service”. This means that all government correspondence gets directed to us, and if another party queries, contacts, or challenges your trademark, they would contact us, rather than you. This ensures that you do not have to deal with the nitty-gritty stuff – we will review, report and advise you accordingly.

Step 3: Government Examination (Report or Approval)

The trademark office will examine all details of your filed application to ensure compliance with the Trade Marks Act 1995 (Cth). This includes assessing that all basic filing requirements are met and ensuring that your trademark is registrable.

This process takes approximately 3 – 4 months after filing. Once the examination is complete, one of two things will happen.

1. We will receive an ‘adverse report’ detailing any requirements that need to be addressed.

2. We will receive a ‘notice of acceptance’ stipulating that your trademark has been accepted for registration.

What happens when we receive an ‘adverse report’?

Our LawPath Trademark Attorneys will work closely with you to remedy the situation as soon as possible. We will provide professional advice on how best to meet the requirements identified by the examiner, and have your application registered by the registrar.

Upon remedying the application, our LawPath Trademark Attorneys will re-submit your application for you, free of charge.

What happens when we receive a ‘notice of acceptance’?

This ‘notice of acceptance’ will advise of the date on which the acceptance of your trademark will be advertised in the Official Journal of Trademarks.

At the commencement of the advertisement of acceptance, any objecting party has 2 months from the date of advertisement to file a notice of intention to oppose the registration of your trademark. If a notice of intention to oppose is filed, that party has to lodge a statement setting out the grounds and details upon which they oppose.

If no notice of intention to oppose or request for an extension of time to lodge an objection is lodged, your trademark will progress to full registration.

Step 4 (Final Step): Registration and Rights

Once your trademark is accepted for registration, either by way of no opposition or you being the successful party in an opposition, the trademark will proceed to registration upon receipt of final fees.

The earliest date a trademark can be registered is 7.5 months after an application is filed. This is to fulfil the government’s international obligations to allow 6 months for applications to claim a priority date based on an overseas filing.

Upon registration, you will be issued an Official Registration Certificate. Your trademark will be protected for 10 years, and is renewable after that period.

Find yourself needing a trademark for your business? We have you covered. LawPath has can get you registered within minutes using our easy-to-fill application. Get started today.

Unsure where to start? Contact a LawPath consultant on 1800LAWPATH to learn more about customising legal documents, obtaining a fixed-fee quote from our network of 600+ expert lawyers or to get answers to your legal questions.

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