Which Trade Mark Symbol Should I Use in Australia? ™ vs ® 

In the competitive world of business, every little detail counts. From the color scheme of your logo to the font on your website, each element is meticulously chosen to convey your brand’s message and identity. Yet, amidst all this creativity, there are two small symbols that hold immense power: the ™ (Trade mark symbol) and ® (Registered Trade mark Symbol).  

As an Australian business owner, you've probably seen these symbols next to brand names and logos. They are more than just decorative marks; they are crucial for protecting your intellectual property. But what do these symbols actually mean? Why are they so important? And most importantly, what’s the difference between an Unregistered Trade mark and a Registered Trade mark? 

Let's dive into the significance of the Trade mark ™ and Registered Trade mark ® symbols, exploring their roles in safeguarding intellectual property, establishing brand credibility, and navigating the complex world of Trade marks in Australia. Whether you're a seasoned entrepreneur or just starting out, it’s time to unravel the mysteries behind these powerful symbols.  

Understanding the Trade mark Symbols  

To understand the ™ (Trade mark) and ® (Registered Trade mark) symbols, you need a basic grasp of Trade marks and their role in protecting intellectual property. Trade marks are legal tools that protect your brand identity, ensuring that your goods or services stand out in the marketplace. They can include words, phrases, names, logos, or symbols, all serving the same purpose: to distinguish your offerings from those of your competitors.  

The ™ (Trade mark) Symbol:  

The ™ symbol indicates that you are claiming a particular mark as your Trade mark. You don’t need official registration with IP Australia, the government body responsible for intellectual property matters, to use this symbol. Even if your Trade mark application is still pending, you can use the ™ symbol. It’s a proactive measure, signaling your intent to protect your brand identity.  

The ® (Registered Trade mark) Symbol:  

The ® symbol carries more weight and authority. It means your Trade mark has been officially registered with IP Australia, granting you stronger legal protection and exclusive rights to use the mark for your specific goods or services. Once you receive the registration certificate from IP Australia, you can proudly display the ® symbol alongside your Trade mark, signifying its official recognition and your exclusive ownership.  

When to Use Which Trade mark Symbol  

The ™ Symbol:  

Use the ™ symbol as soon as you start using a mark to identify your products or services. It’s a proactive measure, alerting others that you consider it your Trade mark. Notably this symbol can be used even while your Trade mark application is under review by IP Australia.  

The ® Symbol:  

Reserve the ® symbol for use only after your Trade mark application has been approved and you’ve received the official registration certificate from IP Australia. Using the ® symbol before receiving this certification is illegal in Australia and can lead to legal repercussions.   

Understanding these distinctions isn’t just about legal formalities; it’s about empowering business owners to protect what they’ve worked so hard to build. By understanding the significance of these symbols, entrepreneurs can confidently navigate the complex landscape of intellectual property rights, ensuring their brands stand out and remain safeguarded in the marketplace.  

Why You Should Use Trade mark Symbols  

Trade mark Law: A Complex Landscape  

Trade mark law is intricate, where small missteps can lead to significant consequences. Online discussions sometimes downplay the importance of using these symbols or registering trademarks. However, this couldn’t be further from the truth.  

The Strategic Use of the ™ Symbol  

Even if you're unable or unwilling to register your Trade mark immediately, using the ™ symbol can be a strategic decision. For example, if your mark is too descriptive to be immediately registered, consistent use of the ™ symbol alongside your brand can help you demonstrate its growing distinctiveness in the marketplace. This could eventually make it eligible for registration based on acquired distinctiveness. The ™ symbol can also signal to potential infringers that you're serious about protecting your intellectual property, acting as a deterrent.  

Imagine a scenario where an Australian startup, let’s call it "ComfyCozy," is launching a new line of eco-friendly office chairs. Excited about their innovative designs and sustainable materials, ComfyCozy quickly brings their products to market to meet growing demand. However, due to limited initial funding and the urgency to establish their brand presence, they decided to postpone the formal registration of their Trade marks.  

Despite not having registered Trade marks, ComfyCozy is keen to protect their brand identity from potential copycats and competitors. To signal their commitment to their brand and deter others from infringing on their intellectual property. 

However, the name "ComfyCozy" is somewhat descriptive of the product's benefits, making it potentially difficult to register as a Trade mark immediately. ComfyCozy understands that this consistent use of the ™ symbol over time can be crucial to their future success. By visibly associating the ™ symbol with their brand for several years, ComfyCozy can gather evidence of how consumers perceive their brand. If they can demonstrate that "ComfyCozy," despite being somewhat descriptive, has become synonymous with their specific products in the eyes of consumers, they significantly increase their chances of successfully registering the Trade mark in the future. 

Should I Register My Trade mark? Beyond Protection: Building Brand Value with a Registered Trade mark

The ™ symbol is a good start, but registering your Trade mark offers much stronger legal protection. If someone tries to use your mark without permission, registration makes it much easier to enforce or take legal action. 

The ® symbol itself acts as a powerful deterrent to potential infringers. It signals that you're serious about protecting your brand and have the legal means to do so. This can discourage others from attempting to use your mark without permission, saving you from costly legal battles down the line. 

Numerous companies have faced costly legal battles to defend their unregistered Trade marks against infringement. By contrast, companies with registered Trade marks can more swiftly and effectively assert their rights, saving valuable time and resources in the process. 

Your brand is more than just a name or a logo; it's a valuable intangible asset for your company. Investors often consider the strength of a brand when making decisions, and a registered Trade mark significantly enhances that strength. Why? Because a registered Trade mark is much easier to enforce and offers a robust defense against Trade mark infringement compared to unregistered marks. 

For example, in a notable Trade mark dispute, Kettle Chip Co, a renowned Australian potato chip manufacturer, had been using the name "Kettle" for their products since 1982. However, in 1990, their competitor, Apand Pty Ltd, began selling potato chips under the name "Country Kettle." Despite not having registered the "Kettle" Trade mark, Kettle Chip Co argued that they had established a strong reputation and consumer association with the name over the years. 

The primary issue in this case was whether the unregistered Trade mark "Kettle" was entitled to protection under the law of "passing off." This legal principle prevents one business from misrepresenting its goods or services as those of another. Kettle Chip Co contended that Apand’s use of "Country Kettle" misled consumers into believing that their chips were associated with Kettle Chip Co's well-known products. 

The court ruled in favour of Kettle Chip Co, finding that Apand’s use of the name "Country Kettle" was likely to deceive or confuse consumers. The decision was based on the substantial evidence presented by Kettle Chip Co, demonstrating their long-term use and the significant reputation of the "Kettle" name. The court acknowledged that Kettle Chip Co had built a strong association with the name "Kettle" over the years, thus entitling them to protection despite the lack of formal Trade mark registration. 

This case highlights several challenges associated with protecting unregistered Trade marks. First, the burden of proof is substantial. Kettle Chip Co had to provide extensive evidence of their continuous use and the consumer association with the "Kettle" name, which is a more demanding process than proving infringement of a registered Trade mark. Second, the remedies available for "passing off" are often less comprehensive than those for registered Trade mark infringement, making it harder to fully compensate for the damage caused. Lastly, the outcome of cases involving unregistered Trade Marks can be unpredictable, as they rely heavily on the interpretation of common law principles and the evidence of reputation rather than the clear-cut rights provided by Trade mark registration. 

Key Takeaways 

• The ™ symbol indicates an unregistered Trade mark claim, while the ® symbol signifies a registered Trade mark. 
  
• Use the ™ symbol when you start using a mark commercially, even before official registration. 
  
• Reserve the ® symbol for use only after your Trade mark is officially registered with the appropriate authorities. 
  
• Consider registering your Trade mark for greater legal protection and establish a clear legal claim to your brand. 
  

By strategically using the ™ symbol, businesses can stake their claim to their brand identity early on, while registration offers comprehensive legal protection and establishes a clear legal claim to the brand. Ultimately, investing in Trade mark registration can safeguard a business's reputation, assets, and market share, ensuring long-term success and competitiveness in the marketplace. 

Our team of commercial law specialists at Allied Legal specializes in Trade mark registration, providing comprehensive guidance and support to businesses of all sizes. Whether you're just starting your entrepreneurial journey or looking to defend your established brand against infringement, we're here to help. 

Don't let your brand identity be compromised. Contact Allied Legal today to learn more about our Trade mark registration, advice, and dispute resolution services. Let us ensure your brand is protected and poised for success. 

 
Author : Ran Zheng