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  • Writer's pictureRaymond Duffy

Common Law Trademarks

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Did you know that in Australia Business Name registration with ASIC does not provide any proprietary rights in the name, only trademarking offers exclusive rights.

The recommended method of seeking trademark protection, for example in relation to a Business Name or trade name, is by applying to register a trademark through IP Australia. There are certain statutory requirements which must be met and an initial application fee payable.

However, an alternative to the trademark registration process is what is referred to as an unregistered trademark, or "common law" trademark.

Common law trademarks can come about where a Business:

  • has used a name, logo or slogan concerning the goods and services their Business offers; and

  • others (eg. consumers) recognise this name, logo or slogan as distinguishing that Business’s goods and services from other traders.

Australia follows the ‘first to use’ rule to determine who owns a common law trade mark. This means that a Business owner may be recognised as the owner of a common law trade mark if:

  • they are the first person to use a trade mark concerning a particular good or service; and

  • no one has already registered that trade mark regarding the same or similar goods.

Generally, common law trademark rights are limited to the specific territory where a Business has used a mark, and only when it can reasonably be said that the mark has gained a reputation amongst consumers.

If you are a Business owner and looking to protect the goodwill in the business brand, our recommendation is to file an application to register a trademark. Once the mark is registered you will have exclusive use of that mark. The trademark registration does require certain statutory steps and fees paid, but provides clearer and stronger IP protection than relying on proving a common law trademark.

Contact Greyson Legal for details on how we can assist you.

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