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How do I use Trade Mark Symbols?

The owner of a trade mark is typically asserting trade mark rights to the public through using the ™ symbol which signifies that a given mark is a trade mark.  The ™ symbol is used in connection with unregistered trade marks whereas the ® symbol is used once the trade mark is registered.

 What do the ™ symbol and the ® symbol mean?

The ™ symbol can be used to identify your trade mark to others but these types of trade marks do not have registered, intellectual property protection. Although the ™ symbol does not give you any legal rights, it can serve a useful purpose through letting people know that you are using the word or logo as a trade mark.

You can use the ™ symbol in relation to a registered or an unregistered trade mark.

The right to use the ® symbol on a trade mark

The ® symbol can only be used in relation to a trade mark which is registered. Having a registered company or business name is not enough. Your word or logo must be entered and registered in the Register of Trade Marks. This symbol puts others on notice of your protected intellectual property rights because it means that you have the exclusive right to use that word or logo in relation to your goods and services.

For example, if you hold the registered trade mark “The Tangerine Scent Shop” for perfumes in Australia, you can use the symbol The Tangerine Scent Shop ® for perfumes in Australia. However, you cannot use the ® symbol in any other country unless you also have “The Tangerine Scent Shop” registered as a trade mark in that country.

If you have registered a trade mark overseas, you can use the ® symbol in Australia providing you state the country of registration alongside the symbol.  For example, if the mark “The Tangerine Scent Shop” is a registered trademark in New Zealand that is used to describe a shop selling scents, then the trademark owner would be able to use this trademark in Australia, provided they displayed the country of origin (New Zealand) close to the registered trademark symbol ®.

Section 151 of the Trade Marks Act – False representations regarding trade marks

It is an offence if you use the ® symbol on a trade mark that is not registered. Section 151(1) of the Trade Marks Act 1995 (Cth) states that:

(1)      A person must not make a representation to the effect that a trade mark is a registered trade mark unless the person knows, or has reasonable grounds to believe, that the trade mark is registered in Australia.

The offender may be fined up to 60 penalty units to falsely represent that a trade mark is registered when it is not.

Where should trade mark symbols be placed?

The typical practice is to position trade mark symbols such ™ symbol and the ® symbol on the upper right-hand corner of a trade mark in superscript.

Take away points:

  • You do not have to use the ™ or ® symbols. You can use your trade mark without these symbols.
  • If your trade mark is registered, you can choose to use either the ™ symbol or the ® symbol, but not both!
  • If your trade mark is not registered, you can only use ™ symbol.
  • Use the ® symbol for your registered trade mark to put your competitors on notice of your exclusive trade mark rights

 

Jaclyn-Mae Floro, BCompSc

Contact W3IP Law on 1300 776 614 or 0451 951 528 for more information about any of our services or get in touch at law@w3iplaw.com.au.
Disclaimer. The material in this post represents general information only and should not be taken to be legal advice.

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