• The terms are often used interchangeably and this is largely correct. However trade marks are the signs (typically words or symbols) that are registered for use by a single company. 
• A trade mark functions as a ‘badge of origin’ identifying the source of branded goods or services.

• In contrast with trade marks company and business names are simply corporate identifiers and do not confer proprietary rights. The mere registration of a company name or business name creates no legal rights whatsoever. 
• The fact that you obtain registration of a company name or business name does not by itself give you legal title to the registered name which will stand up to litigation challenging your right to that name.
• Once you begin using your company or business name then you start to build a reputation and that reputation may be protected by an action for passing off or by recourse to consumer protection statutes.
• You can use our Phone a Lawyer service for a preliminary legal consultation if you think you may need legal advice. 

• Yes there is value. Your brand may be one of your most valuable assets and registered rights protect you against it being used by a third party.
• Trade marks may also assist you in expanding your business through commercialisation and marketing.
• Our LegalPlan™ membership will allow you to ask lawyers to handle your trade mark registration needs for a tender or Fixed Fee Quote.

• Provided you renew your registration every ten years by paying the renewal fees it can last indefinitely.
• However there is scope for a third party to attack a trade mark registration on a variety of grounds including non-use of a trade mark.
• Given that the registration can potentially last forever it makes sense to ensure that you file correctly at the outset and plan to use your trade mark properly.

• Your Australian registration will only protect you in Australia. Registration of a similar trade mark in another country may block your use of your Australian registered trade mark in that country.
• The issues are complicated when your business is online and if your goods and services are available to the world or at least in multiple countries. 
• The costs of registering everywhere may be prohibitive. Your trade mark protection strategy requires a careful assessment of your:

• business plans;
• intended use;
• countries of interest;
• risks; and
• costs.

• You can use our free and anonymous Ask a Lawyer service if you have a particular issue you want to know more about.

• A trade mark is a symbol which distinguishes one business from other businesses.
• A trade mark is also called a ‘brand.’
• It can contain words or logos or a combination of both.

• Yes. There are 45 different ‘classes’ of trade marks:

• 34 classes for goods; and
• 11 for services.

• Each class categorizes goods and services according to an area of trade and is identified by a number.
• Deciding upon the appropriate class or classes can be difficult. For example photography is mentioned in 5 different classes but engaging the services of a photographer is only included in 1.
• The registration fee depends on the number of classes you need your trade mark to be registered under.

• If you have a business and do not register your trade mark you run the risk that someone else could:

• copy your brand and register it for themselves forcing you to find another trade mark; or
• carry on a business using your trade mark or one similar. They could then benefit from the goodwill of your business or alternatively damage the reputation of your business.

• Registering a trade mark gives you special rights including that:

• it is owned by you. You can sell it or licence others to use it for a fee;
• it allows you to protect your trade if someone else uses your trade mark; and
• it allows the police to charge counterfeiters with criminal offences.

• No. Owning a domain name does not protect your trade mark. If you want to protect your trade mark you must register it.

• No. Registering your business name and obtaining an ABN (Australian Business Number) does not protect your trade mark. If you want to protect your trade mark you must register it.

• Trade marks must be distinctive for the type of business you run in order to be registered.
• A registered trade mark must allow consumers to be able to differentiate the products or services you provide from other businesses.
• Made up words are usually acceptable as trade marks. For example:

• Qantas;
• Bupa; or
• Panadol.

• Words involving recognizable names are acceptable if not already registered:

• David Jones;
• McDonalds; or
• Sarah Lee.

•          Regular words used in different ways can also be registered:

• Apple Computers;
• Gumtree Classifieds; or
• Mushroom Records.

• A trade mark that describes your goods or services or their characteristics cannot be registered. For example:

• High Heel Shoes;
• Swedish Furniture; or
• Paperback Books.

• A trade mark that uses a description that is customary in your line of business cannot be registered. For example:

• Baked Bread;
• Natural Gas; or
• Flat Screen TVs.

•  A trade mark that uses a common description but which intentionally misspells some of the words also cannot be registered. For example:

• Plaztic Rap; or
• Kat Food.

• A trade mark will also be rejected if it:

• includes offensive words or images;
• is against the law in any way for example promoting illegal activities; or
• is misleading or deceptive for example attempting to persuade the public that your goods and services have a quality which they do not.

• Trade mark: Open 7 Days

Business: Convenience store.

Acceptable?: No. Many stores are open 7 days a week.

• Trade mark: Zoom 7 Days

Business: Convenience store

Acceptable? Yes.

• Trade mark: Clothes Online

Business: Online clothing

Acceptable? No. This is not distinctive enough. Note that adding .com.au will not help.

• Trade mark: Brass Pineapple

Business: Online clothing

Acceptable? Yes. This would be acceptable for clothing as it is not common usage. However it may not be sufficiently distinctive for food or metalware.

• Trade mark: GoodOil

Business: Engine lubricant

Acceptable? No. Putting words together does not make a mark more distinctive.

• Trade mark: Macca’s GoodOil

Business: Engine lubricant

Acceptable? Yes.

• Trade mark: Shopping.com.au

Business: Internet shopping

Acceptable? No. Using an internet address does not make a mark more distinctive.

• Trade mark: Bumpa.com.au

Business: Internet shopping

Acceptable? Yes.

• Trade mark: Kat Food

Business: Pet food

Acceptable? No. Merely misspelling words is not distinctive enough particularly if they sound the same when pronounced.

• Trade mark: Kosta’s Kat Food

Business: Pet food

Acceptable? Yes.

• Yes as long as:

• the word does not describe your products or services;
• the word is not already registered to another business or is similar to the registered trade mark of another business in the same or similar industry;
• the word is not indecent or offensive;
• the word does not promote illegal activities; or
• the word is not misleading or deceptive.

• Trade mark applications may be refused if the trade mark has:

• an aural similarity to an existing registered trade mark;
  • for example ‘eBuy Auction Website’;
• a visual similarity to an existing registered trade mark;
  • for example a picture like the Campbell’s Soup logo with the name of your own brand of soup in the same writing;
• a conceptual similarity;
  • for example Maree Cleaners and Mary Cleaning Products.

• More than one business can own the same trade mark as long as their areas of business do not overlap for example ‘Magic Day Spa’ and ‘Magic Accountants.’

• More than one business can own the same trade mark as long as their areas of business do not overlap for example ‘Magic Day Spa’ and ‘Magic Accountants.’