Trademark Tips: What are they and why you need to know

By |2022-06-29T11:22:11+10:0031-8-21|

Have you ever noticed the TM or ® symbols displayed alongside the names and logos of brands and businesses you deal with, and wondered what they mean? While both the TM and the ® symbols indicate that the name/image/logo is being used in that context as a trademark, they have slightly different technical meanings. The TM symbol denotes only that the word/image/logo etc. is being used by the owner as a trademark, while the ® symbol shows that the mark is a registered trademark.

To understand the difference between registered and unregistered trademarks, and why you should register your trademark, keep and eye out for my second article in this series.

For now, let’s focus on what a trademark is, and what you can register as a trademark in Australia.

The Legal Definition

According to the Trade Marks Act, a trademark 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.”

But what does that actually mean?

To fully understand what a trademark is, we need to know what a “sign” is. Under the Trade Marks Act, a “sign” includes a letter, word, name, signature, numeral, device, brand, heading, label, ticket, aspect of packaging, shape, colour, sound or scent (or any combination of those).

Because of the wide definition of “sign”, it’s possible to trademark a very broad range of things. Anything from your business’ name, logo/s, packaging (including individual aspects – for example, colours and shapes of packaging) or a combination of those things can potentially be trademarked. However, to be a trademark, the sign (name/logo/packaging etc.) must be used, or intended to be used, to distinguish the goods or services provided by you or your business; it must be used as a ‘badge of origin’.

Some interesting examples of what can be trademarked include: the shade of purple used on the packaging of a certain well-known brand of milk chocolate, and the shape of the glass contour bottle used by arguably the world’s most popular cola brand.

Photo of a coke bottle in ice

In the real world

Trademarks are much more than just names or logos. They are a way of identifying the products and services that are unique to you and your business. Trademarks show a connection between the goods or services provided by your business, and the business itself. They form part of your ‘brand’, as they allow consumers to identify your products/services and to distinguish them from those of your competitors. As such, trademarks are inextricably linked to your goodwill and, for that reason, they are incredibly important (and powerful!).

Whether your business is at the start-up stage, in the process of rebranding, or established, it is important to think about your intellectual property rights and whether you can or should register them. It is also important to understand who your competitors are, and what intellectual property rights they have. The ability to use and to continue to use your business name and trademark/s over the long term is critical to the success, and value, of any business. As such, if any name, logo, design, shape, colour, sound, aspect of packaging etc. is important to your business, then you ought to get appropriate professional advice about whether it can be trademarked – and then, if it can be, apply to register it.

If you would like to discuss your trademark rights and how to protect them, or intellectual property issues more generally, please contact us today.

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  1. Trade Marks Act, s 17.
  2. Trade Marks Act, s 6.

Think Commercial. Think Nicholsons.

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One Comment

  1. Jonathan C. Williams June 10, 2022 at 10:19 am - Reply

    Intellectual property patents, trademarks, and copyrights have become the international currency by which companies and nations ensure their competitive position in the world.

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