A trade mark is a way of branding and identifying a product or service, and distinguishing those products or services from competitors.  Over time, the concept of what is considered to be a trade mark has expanded and can include a logo, word, colour, sound, smell, phrase, shape, picture, movement, number, letter, aspect of packaging, or a combination of any of these elements.  In addition to this, trade marks being used in Australia in the marketplace may be regarded as an “unregistered” trade mark, pursuant to which rights are developed via use and reputation, or a trade mark which has been “registered” in relation to nominated goods or services, under the Trade Marks Act 1995 (Cth) (“the Act”).   The status of a trade mark however can be identified through the correct use of different symbols, which are also an important element of brand protection.

What are the trade mark symbols?

The two symbols primarily being referred to are the ™ symbol and the ® symbol.  In Australia, these are commonly placed in a prominent position, typically to the right at the end of a trade mark and used by traders in the marketplace, however their respective meanings may not be widely understood and they are sometimes applied incorrectly.

“TM” symbol

The ™ symbol can be used to indicate to competitors and consumers that you intend for your brand to operate as a “trade mark”. The use of this symbol however does not mean that your trade mark is registered, nor does it indicate that you have any rights pertaining to registered trade marks under the Act.

“R” symbol

The ® symbol on the other hand, indicates that a trade mark has been registered under the Act and should only be used once the trade mark has been registered as a trade mark under the Act.   It therefore demonstrates to consumers and competitors alike that the owner of it has been granted certain exclusive rights of use as well as protection mechanisms which are only available to and enforceable by registered trade mark holders under the Act  This may also assist in acting as a deterrent to potential infringers from copying your brand logo or name.

It is also important to note that in Australia, the use of the ® symbol in relation to a trade mark which has not been registered under the Act, is an offence under the Act and penalties apply.  For instance, if you are found to have incorrectly used the ® symbol, you may be liable for a fine.

Conclusion

Using the correct symbol is important to both avoid penalties under legislation, as well as to enhance your brand protection strategy.

Pointon Partners are able to assist you with queries you may have in relation to brand protection, trade mark registration and registered and unregistered trade mark rights.

If you have any queries, or wish to discuss this article further, please contact Felicity Cara-Carson or Stefano Mazzeo .

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