Protecting your intellectual property rights is paramount, and one vital step in doing so is registering your trademark. This not only allows you to use the registered trademark symbol ® alongside your mark but also grants you various benefits that are not available to unregistered trademark owners.
The Meaning and Use of the Registered Trademark Symbol ®
The registered trademark symbol ® can only be employed with registered trademarks. Its purpose is to inform and compel others to respect your rights to the trademark, providing stronger protection compared to an unregistered mark. Under section 151(1) of the Trade Marks Act 1995 (Cth), it is an offense to use the ® symbol on an unregistered trademark, punishable by fines up to $12,600 (Crimes Act 1914 (Cth) s4AA(1), Crimes Amendment (Penalty Unit) Act 2017 (Cth) s1).
For owners of foreign registered trademarks who wish to use their marks in Australia, they may use the registered trademark symbol ® along with the country of registration displayed nearby (Trade Marks Act 1995 (Cth) s151(5)). For instance, if the mark 'rocking runners' is a registered trademark in Japan for a brand of sneakers, the owner can use this mark in Australia by indicating its country of origin (Japan) close to the registered trademark symbol ®.
Other Trademark Symbols: Besides the registered trademark symbol ®, the trademark symbol TM is commonly used to indicate a claim to a specific word or design as a trademark. Unlike the ® symbol, the TM symbol doesn't require registration in Australia. It serves to demonstrate common law rights to a trademark before official registration. However, it's important to consider registration as unregistered trademarks with the TM symbol do not receive full intellectual property protection.
How to Register a Trademark
As the owner of a mark, you can apply to have it registered as a trademark under the Trade Marks Act 1995 (Cth) s27(1). To be eligible for registration, you must meet the following criteria:
Use the trademark within Australia before anyone else.
Apply for registration before anyone else.
Create the trademark with the intention to use it.
It's essential to note that some marks may not be eligible for registration, such as those containing city or town names, non-descriptive marks, marks that violate other laws (e.g., copyright), and marks too similar to existing trademarks (s39, s40, s42(b), s44).
Advantages of Registering Your Trademark
Registering your trademark offers numerous benefits, including:
Exclusive ownership and licensing rights.
Ability to assign the trademark to others.
Infringement protection throughout Australia without proving 'business reputation' in each region.
Capability to make the registered trademark a gift in your will.
The potential to sell the registered trademark as an asset.
Using the registered trademark symbol ® properly is essential to protect your rights and deter potential infringements. While there are no penalties for using the TM symbol on unregistered marks, it is crucial to register your trademark to ensure comprehensive protection of your intellectual property. Although registration may involve initial expenses, the long-term benefits and safeguards outweigh the costs associated with an unregistered mark.