A trade mark is used to distinguish your goods and services from other third party traders. A trade mark is primarily a right to a limited monopoly for a word, slogan, phrase, sound, smell, shape or logo.
Trademarks can be either registered (in which case they are protected under the Trade Marks Act) or unregistered (which protects them under a combination of common law and consumer protection laws).
Registered trade marks give your business a much greater level of enforceability to prevent other parties from unlawfully using your trade marks.
Trade marks can be registered through an application process with the Australian Trade Mark Office. The Trade Mark Office reviews all applications, after filing, to check compliance with the Trade Marks Act.
It is should be noted that IP Australia (Australian Trade Mark Office) does offer a system called the HEADSTART program which allows for a type of general search to be completed prior to filing your trade mark.
One of the primary concerns about IP Australia’s HEADSTART program, is that IP Australia is not providing advice along with the search. Often, citations or objections raised against applications by IP Australia can be counter argued by Trade Mark Attorney. In the HEADSTART program, this does not occur and the judgement of IP Australia is final.
In effect, this system rejects trade mark applications prior to filing and there is little recourse to overcome the objections raised. The applicant of a rejected HEADSTART system application is often required to contact a qualified Trade Mark Attorney and instruct them to refile the trade mark as a standard application. This incurs more expense for the trademark applicant and could have been avoided by discussing their matter with their attorney or lawyer.