What a registered trade mark gives you
Under Section 20 of the Trade Marks Act 1995, the registered owner of a trade mark has the exclusive right to use that mark in connection with the goods and services for which it is registered, and the right to authorise others to use it. These rights take effect from the date of registration.
Only a registered trade mark gives you enforceable, exclusive rights over your brand. A business name, company name, or domain name does not.
Trade marks, business names, and domain names are different things
This is one of the most common misunderstandings in Australian business. Registering a business name with ASIC, incorporating a company name, or securing a domain name does not give you any trade mark rights or any exclusive right to use that name as a brand.
- A business name (registered with ASIC) is a compliance requirement that allows you to trade under a particular name. ASIC only checks its own register — not the trade marks register — so a business name can be registered even if it infringes an existing trade mark.
- A company name (registered with ASIC) identifies a legal entity. It carries no brand exclusivity.
- A domain name is a licence to use an internet address. It gives no trade mark rights and can be lost in a dispute to a trade mark owner under the .au Dispute Resolution Policy.
Only a registered trade mark, obtained through IP Australia, provides enforceable intellectual property rights over your brand. If you are building a business around a name, registering the trade mark should be a priority — not an afterthought.
A trade mark is property
A registered trade mark is a form of personal property. It can be assigned (sold) to another party, licensed to generate royalty income, used as security for financing, or transferred as part of a business sale. Unlike a business name or domain, a trade mark is a recognised asset with real and transferable commercial value.
Trade mark registrations can also be renewed indefinitely in 10-year periods, meaning the protection can last for as long as the mark remains in use — unlike patents or designs, which have fixed maximum terms.
Choosing a strong trade mark
A trade mark can be any sign used to distinguish your goods and services from those of other traders. The most common types are word marks and logos, but trade marks can also include sounds, shapes, colours, scents, movements, or combinations of these.
The single most important factor in choosing a trade mark is distinctiveness. IP Australia assesses whether a mark is inherently capable of distinguishing your goods and services from those of other traders. Marks fall along a spectrum:
- Invented or coined words (e.g. Kodak, Xerox) — the strongest category. These have no meaning outside the trade mark and are inherently distinctive.
- Arbitrary marks (e.g. Apple for computers) — existing words used in a context unrelated to their ordinary meaning. Strong and generally registrable.
- Suggestive marks (e.g. Netflix, Vegemite) — marks that hint at a quality of the goods or services without directly describing them. The test is whether the mark makes a "covert and skilful allusion" rather than a "direct reference" to the goods. Generally registrable.
- Descriptive marks (e.g. "Fast Delivery" for a courier service) — marks that directly describe a characteristic of the goods or services. These are unlikely to be accepted unless you can demonstrate they have acquired distinctiveness through extensive prior use.
The strongest trade marks are invented, arbitrary, or suggestive. Descriptive marks face the highest hurdle to registration and are the hardest to enforce.
If your business uses both a word mark and a logo, these should be filed as separate applications. Where only one can be filed, a word mark generally provides broader protection because it covers the word itself regardless of font, colour, or styling.
Classifying your goods and services
Every trade mark application must specify the goods and services for which the mark is used or intended to be used. These are classified under the Nice Classification system — an internationally recognised framework that divides all goods and services into 45 classes (classes 1–34 for goods, 35–45 for services).
Getting this right matters. Your protection extends only to the goods and services you nominate. If your specifications are too narrow, you may leave gaps that competitors can exploit. If they include goods or services you do not actually use, the registration may become vulnerable to removal for non-use — which can be initiated by any party after three years of non-use.
IP Australia maintains a searchable picklist of over 60,000 pre-accepted terms to assist with classification. As a general guide:
- Cover what you currently sell or provide
- Include goods and services you genuinely intend to offer within the next three to five years
- Consider both sides of your business — a product business with an online store may need both a goods class and Class 35 for retail services
Once filed, the scope of goods and services can be narrowed but not broadened. If your business later expands into new areas, a fresh application can be filed to cover the additional goods and services.
Searching before you file
Before filing, it is important to check whether your proposed trade mark is available. IP Australia offers a free TM Checker tool that provides preliminary feedback on whether your proposed mark is similar to existing registrations.
A professional clearance search goes further — examining not only the trade marks register but also common law use, business name registers, domain names, and other sources that may indicate prior rights. Identifying potential conflicts before filing avoids wasted costs and the risk of opposition proceedings.
Filing options
For a detailed walkthrough of what happens after filing — including examination, the opposition period, and registration — see our guide to the Australian trade mark application process.
International protection
Trade mark rights are territorial. An Australian registration protects your brand in Australia only. If you trade or intend to trade overseas, international trade mark protection should be considered within six months of your Australian filing date to claim the benefit of your original priority date under the Paris Convention.
Next steps
If you are ready to protect your brand, contact Patentec for a complimentary consultation. We can assess your proposed trade mark, advise on the appropriate goods and services, conduct a clearance search, and manage the entire registration process on your behalf.
For background on why trade mark protection matters for your business, see our overview of why trade mark your brand.