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What Rights Do You Have With A Registered Trade Mark?

Smart young man in an apron standing by the door to a café.

A trade mark is a badge of origin which distinguishes goods or services from those of other traders operating in the same industry and a registered trade mark gives owners exclusive and legally enforceable rights to use, licence or sell that mark. 

Without the protection by way of trade mark registration, a brand or business is vulnerable to many different things including attack from competitors, consumer confusion, erosion of brand equity and reputational damage.  Essentially, trade mark registration is the most powerful way of protecting your valuable business asset.

This article discusses the rights that are attached to trade mark registration and outlines the wide-ranging benefits of trade mark registration.

A summary of the rights attached to trade mark registration

Registering a business name or brand as a trade mark gives the trade mark owner:

  • Legally enforceable and rights to use that registered mark for the nominated goods and/or services
  • The right to prevent any other party from using a similar brand or name in respect to goods or services that are similar where such use amounts to trade mark infringement
  • The right to take steps against any other entity that is infringing your rights (ie you can institute legal proceedings against another trader if they are deemed to have infringed your trade mark)
  • The right to transfer, license or sell the mark

This last point is a really important one with respect to trade mark registration.  That’s because a registered trade mark is a tradeable asset and it can be sold, licensed or transferred to another party or parties.   If that mark has attained significant goodwill and a strong reputation, it can be a valuable and lucrative asset for the trade mark owner. Registering a trade mark not only puts a ring of steel around that asset, it can also add substantial value to it.

Additional benefits of trade mark registration

  1. The right to use is immediate. As soon as the trade mark has been registered, your rights to use that mark in relation to the nominated goods/services are in force. 
  2. A registered trade mark is listed on a publicly searchable database managed by IP Australia, so it serves as a clear signpost as to your ownership and monopoly over it. The database also serves as a public record as to when your statutory rights began. (Noting some business operator’s may have earlier dated common law rights).  Because IP Australia examines all trade mark applications, once a new one is registered, there can be no ambiguity about who owns it, what goods and/or services it is valid for and when your rights commenced.
  3. Registering a trade mark gives you peace-of-mind that you can use that mark freely without fear of infringing on anyone’s rights.
  4. Registration serves as a powerful deterrent to anti-competitive, copycat or unethical behaviour.
  5. Registration provides a strong foundation and scaffolding for building brand awareness and reputation.
  6. Registration gives you the legal right to use the ® symbol next to your trade mark. You are allowed to use a ™ symbol adjacent to a mark even if that mark has not been registered, but this does not prove any legal rights and rights and it can be difficult and expensive to prove ownership.  It is an offence to use the ® symbol alongside an unregistered mark. 
  7. Trade mark registration provides protection Australia-wide.

Key takeaways

Essentially, registering a trade mark gives you the proprietary right to use, sell or license that mark and is a powerful strategy for protecting your business’s valuable intellectual property and protecting the viability and future success of that asset and of the business as a whole.

Registration is both a shield and a sword – providing a solid defence and powerful weaponry against anyone who may deliberately or inadvertently infringe on your rights.

It is possible to register a trade mark on your own, but it is recommended that you get advice from an experienced professional (either an intellectual property lawyer or trade marks attorney) so that the decisions you make are the correct ones.

Jacqui Pryor

Jacqui is a registered trade marks attorney with the Trans-Tasman IP Attorneys Board and is the founder and owner of Mark My Words Trademark Services Pty Ltd.

After being introduced to the world of trade marks in one of her first jobs after high school, Jacqui discovered she had a deep passion and interest for all things to do with protecting brands and intellectual property. She completed a Graduate Certificate in Trade Mark Law and Practices as well as a Diploma in Business Management and then set up her own business in 2011.

Her motivation for starting Mark My Words was to support SMEs which typically couldn’t afford such a service and while the company has grown in both size and reputation over the years, she has remained true to her founding principles of providing professional, friendly, reliable and affordable trade mark services to all.

Mark My Words now has a client list that spans businesses of all sizes across a range of industries. It provides advice and assistance on all types of complex trade mark registrations, infringements and opposition matters both in Australia as well as overseas.

Jacqui’s wealth of experience, broad range of professional qualifications and her ongoing participation in industry forums and networking platforms keeps her at the forefront of developments in the global trade mark arena. Her expertise in her field has also led to several nominations as a top individual trademark attorney by the World Trademark Review - the world’s leading trademark intelligence platform.

To keep up to date with the latest in the field of trade marks, follow Jacqui and MMW Trademark Services on Facebook.

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