A trademark is often labelled as a brand and is used to differentiate from other products or services. Well-known trademarks include the golden arches of McDonalds, the Qantas kangaroo and even the parrot placed on your favourite packet of Arnott’s biscuits. The use of trademarks is a marketing tool that allows consumers to exclusively recognise a product or service, which may influence them to purchase from your brand again. The main question is whether a person needs a company to register a trademark. In short, the answer is no. Any person can register a trademark as long as the person applying is be the owner of that mark. This article will explain whether you need a Company to Register a Trademark and the process here.
Key points
- You do not need a company to register a Trademark
- Anyone can register a trademark as long as they are the owner of the mark
- Research first! See whether your trademark is similar to others and determine which class your product or service falls under before submitting your application
- Talk to an IP lawyer if you need further assistance.
What is a trademark?
The definition of a trademark is under s 17 of the Trade Marks Act 1995 (Cth). It provides that a trademark is a sign, used or intended to be used, to distinguish goods or services in the course of trade. In other words, a trademark is differentiates a particular product or service from other competitors. The definition of a trademark is inclusive and extends to words, colours, sounds and even smells. Registering your trademark provides you with national protection and exclusive rights to use, sell and license the mark.
It is also important to note the difference between registering a trademark and a business name. Registering a business name identifies the name you trade under and does not provide the same exclusive rights afforded to those who register a trademark. You can read more about the differences between the two here.
Who can register a trademark?
Any person can register for a trademark as long as the trademark satisfies the definition, as outlined above. According to IP Australia, you can apply for a trademark as:
- An individual
- A company
- An incorporated association
- As a combination of these (in the case of multiple owners).
The applicant must also:
- Have an address for service in either Australia or New Zealand. This can either be the applicant itself or the applicant’s representative
- Not be registering a business name or trading name
- Be the owner of the business registration or under the corporation’s name (if owned by the corporation)
- Use, or intend to use the trademark in relation to the goods or services outlined in the application.
How can I register a trademark?
Research
Prior to sending an application for registration, a comprehensive research should be conducted. The application must include a description of the goods or services that you intend to use your trademark on. The trademarks classification search provides a database of the different goods and services classes. Determining what class your goods or services will be protected under is particularly critical as once the application is finalised, you can no longer adjust or extend your list.
It is also recommended that you visit the Australian Trade Mark Search. This website has access to all the registered trademarks and their owner names, which can be helpful in ensuring that your trademark is not similar or already registered. Talking to a trademarks lawyer may provide you with further information and advice.
Apply for registration
There are three ways you can register your trademark online. Each method caters for slightly different needs and costs:
- TM Headstart does not guarantee registration of your trademark and instead, identifies potential barriers during the registration process. This method is suitable for those who are unsure about the process and requires a fast assessment
- The online service offers a secure and convenient way to manage your trademark requests. You must first submit your details before accessing the registration link
- Trade Mark Assist is an educational tool that provides basic information about your proposed trademark and identifies common mistakes during the application.
Application outcome
It usually takes at least three to four months to examine a trademark application once the application has been submitted. An application will be rejected if the trademark cannot be represented graphically, is unable to be distinguished, scandalous, is likely to receive or cause confusion or is identical to other trademark.
A written notice will be provided through the online service and the trademark will be advertised as ‘accepted’ if the application is successful. For two months, third parties can challenge the registration of your trademark if they believe it is too similar to their own mark. This may lead to further court fees. Once the two month period has completed, the trademark will be registered considering that there are no oppositions or outstanding fees.