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A trade mark can be a word, phrase, letter, number, sound, smell, shape, logo, picture, aspect of packaging or a combination of these, and is used to distinguish the goods and services of one trade from those of another.

A trade mark is generally registrable if:

the mark is used in association with a business or product or service; it is not deceptively similar to another mark; or it is not too vague in its description, or its description is made up of elements that should be available to all and sundry.

A trade mark gives the registered owner the exclusive right to exploit the words and/or logos in the particular class of goods or services for which the mark is registered. The difference between trade marks, business, company and domain names sometimes causes confusion. Registration of a business, company or domain name does not in itself give you any proprietary rights - only a a trade mark can give you that kind of protection.

Trade mark registration is not compulsory, but it is advisable. There is protection against misrepresentation under the trade practices or fair trading legislation. It is also possible to take action under common law but this can be a time-consuming and expensive exercise.

A trade mark may be difficult to register if it is a sign that other traders may wish to use to promote or describe their goods and services, or if it is likely to mislead the public about the nature of your goods or service. It is also very difficult to register a geographic name or a common surname as a trade mark, however, someone who has used one extensively for a considerable period of time may be able to achieve registration.

Before settling on a trade mark to register it is best to brainstorm a range of trade marks or logos which you think could be appropriate. This should always be followed by a search of the trade marks database and other goods and services existing in the market place to ensure that you will not be infringing any existing trade marks.

You can trade mark a word, or a logo, in black and white or in combination. There is a great deal of information available on the web, but the best information is here: http://www.ipaustralia.gov.au/trademarks/faq_index.shtml

The usual costs are:

BJT Legal Fees vary depending on the scope of the application, and are generally estimable to the point the application is receipted at IP Australia. If negotiations with a trade mark examiner are required, the fees for doing so would be extra - however this is usually avoided by searching the data base as best as possible prior to lodging the application. $120* application fee per class of goods or services, payable at the time of making the application $300* registration fee per class of goods or services, payable upon acceptance.

Acceptance usually occurs 6 to 9 months after application. Once the registration fee is paid, the trade mark is registered for 10 years from the date the application was received.

*Subject to change

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