Trade Mark Rights

In Australia we have adopted the British system of trade mark law, namely that rights in a trade mark can be established in two ways: either by using the trade mark or by registration of the trade mark with the Australian Trade Marks Office.

If you have used your trade mark but not yet applied to register the brand then under our common law system you are still recognised as having acquired the right to stop others using the trade mark even though it is not registered. Before you start using your trade mark you will want to make sure that someone else isn't using the trade mark or even registered it before you as a trade mark. If so, you could be liable for trade mark infringement by using someone else trade mark. You can get a proper search done by professionals to ascertain if the trade mark you intend to use is available for your use and registration.

Also to acquire 'common law rights' in a trade mark you must have used the trade mark for some time to build up a reputation in the trade mark amongst your customers.

If you have spent a long time using your trade mark and have built up a reputation in the brand then there is no doubt that you will want to register your brand as a registered trade mark so you have an enforceable trade mark right and stop others using the trade mark. You can only take legal action for trade mark infringement if you yourself have a registered trade mark.

If you have a registered trade mark then this will make it a lot easier to stop someone else using your trade mark. Why build up a solid reputation in your trade mark to have someone else come long and use or it or even apply to register before you do. If you have used the trade mark and then someone else applies to register the trade mark then you will have to spend time and money fighting to prove your prior rights in the trade mark. It is much better to apply first and to have a Trade Mark Registration Certificate to prove your rights to the trade mark.

Your trade mark will become a valuable business asset. Think of trade mark registration as an investment. Protection of your brand is protection of your hard earned property in the business. You wouldn't use or buy a piece of land or shares without first checking that you can use or buy it and once bought you would obviously take steps to protect that investment. The same can be said for your trade mark. A trade mark is an integral part of your business and without protection and registration of your trade mark you leave your business vulnerable to abuse that someone else could use your trade mark and take advantage of your hard earned reputation or upset your customers for which you have worked so hard for.